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Sub. S. B. No. 335 As Reported by the Senate Transportation CommitteeAs Reported by the Senate Transportation Committee Corrected Version
130th General Assembly | Regular Session | 2013-2014 |
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Cosponsors:
Senators Uecker, Eklund, Beagle, Manning, Brown, Hite, Lehner, Jones, Patton
A BILL
To amend sections 5501.44, 5501.70, 5501.71, 5501.73,
5501.78, 5531.11, 5531.12, 5531.13, 5531.14,
5531.15, 5531.16, and 5739.02 and to enact
sections 5531.141, 5531.142, 5531.143, 5531.144,
5531.145, 5531.146, 5531.147, 5531.148, and
5531.149 of the Revised Code to provide that a
toll project may include the substantial
reconstruction or replacement of an existing
toll-free highway, bridge, or tunnel, to amend the
law governing public-private agreements relative
to transportation facilities, and to provide for
the collection of user fees on toll projects by
toll project operators.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 5501.44, 5501.70, 5501.71, 5501.73,
5501.78, 5531.11, 5531.12, 5531.13, 5531.14, 5531.15, 5531.16, and
5739.02 be amended and sections 5531.141, 5531.142, 5531.143,
5531.144, 5531.145, 5531.146, 5531.147, 5531.148, and 5531.149 of
the Revised Code be enacted to read as follows:
Sec. 5501.44. (A)(1) Notwithstanding section 5735.27 of the
Revised Code, the director of transportation, when the director
determines it in the interest of the welfare and safety of the
citizens of Ohio, may enter into agreements with other states or
subdivisions thereof or the United States relative to the
cooperation in the repair, maintenance, or construction of a
bridge crossing a stream that forms a boundary line of this state,
and may expend state highway funds for said purpose.
(1) No Except as provided in division (A)(3) of this section,
no such agreement shall be made that obligates this state to
expend more than the cost of the construction of such portion of
said bridge as is located within the state, and not more than
fifty per cent of the cost of maintenance of any such bridge, and
no such agreement shall be made that obligates the state in excess
of three hundred thousand dollars in any one year for maintenance.
(2) Notwithstanding division (A)(1) of this section, the
director may expend funds for the design, construction,
inspection, maintenance, repair, and replacement of bridge and
bridge approaches for the bridge that were transferred from the
Ohio bridge commission to the control of the state of Ohio,
department of transportation, as provided in Section 4 of Amended
Substitute House Bill No. 98 of the 114th general assembly.
Following the replacement of that bridge, the director may expend
funds for the design, construction, inspection, maintenance,
repair, and replacement of bridge and bridge approaches.
(3) Notwithstanding division (A)(1) of this section, the
director may enter into an agreement with another state for the
replacement, improvement, rehabilitation, operation, and
maintenance of a bridge or system of bridges that carries an
interstate highway over the Ohio river to another state, and for
the replacement, improvement, rehabilitation, operation, and
maintenance of roadways providing for ingress to and egress from
that bridge or system of bridges. However, no such agreement shall
obligate this state to expend more than fifty per cent of the
total project costs.
(4) Any such agreements agreement that is entered into under
this section shall be approved by the governor and attorney
general of the state before they become it becomes effective.
(4)(5) Each agreement entered into shall designate
responsibility for inspection, provide for annual inspection, and
require that a report of each inspection be filed with the
department of transportation. The director, with regard to all
existing bridges or other bridges on a stream that forms a
boundary line of this state, shall take all reasonable measures to
obtain and to secure the filing of a copy of each inspection
report for each bridge with the department of transportation.
(5)(6) The department, upon hearing that a bridge across the
Ohio river is scheduled to be closed by a contiguous state, shall
make all reasonable efforts to notify the Ohio residents likely to
be adversely affected by that closing. The department also shall
cooperate and communicate with contiguous states in trying to
resolve bridge closing problems.
(B)(1) The director, when the director considers it in the
interest of the welfare and safety of the citizens of Ohio, may
enter into agreements with other states, subdivisions thereof,
metropolitan planning organizations, or the United States,
relative to the design, construction, operation, maintenance, and
repair of a regional traffic management system, and may expend
state and federal highway funds for such purposes, notwithstanding
any other provision of the Revised Code.
(2) No such agreement shall be made that obligates this state
to expend more than the cost of construction of such portion of a
regional traffic management system as is located within the state,
and not more than a proportional amount, based upon the system
presence in this state, for costs of design, operation,
maintenance, and repair.
(3) Any such agreements shall be approved by the governor and
attorney general of the state before they become effective.
(4) As used in division (B) of this section, "regional
traffic management system" means an integrated, high-technology
system to provide remote control center surveillance and
monitoring of the regional freeways and main arterial routes in
order to reduce and eliminate major backups and delays to
motorists in the area.
Sec. 5501.70. As used in sections 5501.70 to 5501.83 of the
Revised Code:
(A) "Affected jurisdiction" means any unit of government
within the state in which all or part of a transportation facility
is located or any other public entity directly affected by the
transportation facility.
(B) "Force majeure" means an uncontrollable force or natural
disaster not within the power of the operator or the state.
(C) "Maintenance" includes routine maintenance, major
maintenance, and any other categories of maintenance that may be
designated by the department of transportation.
(D) "Material default" means any failure of an operator to
perform any duties under a public-private agreement that
jeopardizes delivery of adequate service to the public and remains
unsatisfied after a reasonable period of time and after the
operator has received written notice from the department of the
failure.
(E) "Operate" means any action to maintain, repair, improve,
equip, or modify a transportation facility.
(F) "Operator" means a private entity that has entered into a
public-private agreement under sections 5501.71 to 5501.83 of the
Revised Code.
(G) "Private entity" means any natural person, corporation,
general partnership, limited liability company, limited
partnership, joint venture, business trust, public benefit
corporation, nonprofit entity, or other business entity.
(H) "Public-private agreement" means the agreement between a
private entity and the department that relates to the development,
financing, maintenance, or operation of a transportation facility
subject to sections 5501.70 to 5501.83 of the Revised Code.
(I) "Public-private initiative" means an arrangement between
the department and one or more private entities, the terms of
which are stated in a public-private agreement, that provides for
all of the following:
(1) Acceptance of a private contribution, including a money
payment, for a project or service for a transportation facility;
(2) Sharing of resources and the means of providing a project
or service for a transportation facility;
(3) Cooperation in researching, developing, and implementing
projects or services for a transportation facility.
(J) "Transportation facility" has the same meaning as in
section 5501.01 of the Revised Code and also includes a tunnel,
ferry, port facility on navigable waters that are used for
commerce, intermodal facility, or similar facility open to the
public and used for the transportation of persons or goods, and
any building, structure, parking area, or other appurtenances or
property needed to operate a transportation facility that is
subject to a public-private agreement.
(K) "User fee" means a rate, toll, fee, or other charge
established under section 5531.14 of the Revised Code and imposed
by an operator for use of all or part of a transportation facility
in accordance with that section.
(L) "Utility" means a privately, publicly, or cooperatively
owned line, facility, or system for producing, transmitting, or
distributing communications, cable television, power, electricity,
light, heat, gas, oil, crude products, water, steam, waste, storm
water not connected with highway drainage, alternative or
renewable energy sources such as wind or solar, or any other
similar commodity, including a fire or police signal system or
street lighting system that directly or indirectly serves the
public.
Sec. 5501.71. (A) The department of transportation may
solicit, receive, consider, evaluate, and accept a proposal for a
public-private initiative.
(B) In soliciting and selecting a private entity with which
to enter into a public-private initiative, the department shall
use one or both of the following:
(2) Selection of proposals, with or without negotiations,
based on qualifications, best value, or both.
(C) The department shall consider the following factors in
evaluating and selecting a bid or proposal to enter into a
public-private initiative:
(1) The ability of the transportation facility to improve
safety, reduce congestion, increase capacity, and promote economic
growth;
(2) The extent that the private entity's proposal addresses
the needs identified in the appropriate state, regional, or local
transportation plan by improving safety, reducing congestion,
increasing capacity, or enhancing economic efficiency and the
private entity's proposal is on the transportation improvement
program for the affected metropolitan planning organization or the
state transportation improvement program;
(3) The proposed cost of and financial plan for the
transportation facility;
(4) The general reputation, qualifications, industry
experience, and financial capacity of the private entity;
(5) The proposed design, operation, and feasibility of the
transportation facility;
(6) Comments from local citizens and affected jurisdictions;
(7) Benefits to the public and the affected transportation
facility;
(8) The safety record of the private entity;
(9) The inclusion of a teaming agreement in the bid or
proposal that identifies the primary designer of record or design
firm representing not less than thirty per cent of the estimated
design fee, the primary construction contractor representing not
less than thirty per cent of the estimated construction dollar
value amount, and the primary financier representing not less than
fifty per cent of the total project cost.
(10) Any other criteria that the department considers
appropriate.
(D) The department may select multiple private entities with
which to enter a public-private agreement for a transportation
facility if it is in the public interest to do so.
(E) The department shall select a private entity or entities
for a public-private initiative on a competitive basis.
(F) Any materials or data submitted to, made available to, or
received by the director of transportation, to the extent that the
material or data consist of trade secrets, as defined in section
1333.61 of the Revised Code, are confidential and are not public
records for the purposes of section 149.43 of the Revised Code.
Financial information received by the director that is related to
a proposal is confidential and not a public record for purposes of
section 149.43 of the Revised Code until such time as a proposal
is selected. Prior to submission of a solicited proposal, a
private entity may request a review by the department of
information that the private entity has identified as
confidential, to determine whether such information would be
subject to disclosure under section 149.43 of the Revised Code.
(G)(1) The department may reimburse one or more private
entities for a portion of the actual costs each entity incurred in
submitting a proposal for a public-private initiative that was
solicited by the department under this section. When considering
the reimbursement of such costs, the director shall describe in
the request for proposals for a specific public-private initiative
the specific terms and conditions for reimbursing one or more
private entities. The director may include in the terms and
conditions a requirement that each private entity execute an
agreement to transfer to the department the rights to the use of
the work product contained in the proposal in exchange for
receiving the reimbursement.
(2) The director shall make all decisions related to the
reimbursement of a specific private entity and related to the
maximum amount of the reimbursement. However, the department shall
not reimburse a private entity if that entity enters into the
public-private agreement that is the subject of the solicited
proposal, except as set forth in the request for proposals or in
the public-private agreement. The reimbursement of costs under
division (G) of this section is exempt from the requirements of
Chapter 125. of the Revised Code and sections 127.16 and 127.162
of the Revised Code.
(3) If the department, pursuant to division (G)(1) of this
section, includes a reimbursement provision in a request for
proposals and the department subsequently terminates the
solicitation prior to the solicitation expiration date, the
department shall prorate the amount of the reimbursement that is
to be paid to each private entity participating in the
solicitation on the date the department terminates the
solicitation. The department shall calculate the proration
percentage by determining the number of days from the date the
solicitation first was offered until the date the department
terminated the solicitation and dividing that number by the number
of days of the original solicitation period.
(4) Except as otherwise provided in writing by the
department, if, pursuant to division (G)(1) of this section, the
department includes a reimbursement provision in a request for
proposals and subsequently enters into negotiations based on the
selection of a desired proposal and the department elects to
terminate those negotiations for the convenience of the department
and through no fault of the proposer, the proposer is entitled to
the full reimbursement amount.
Sec. 5501.73. (A) After selecting a solicited or unsolicited
proposal for a public-private initiative, the department of
transportation shall enter into a public-private agreement for a
transportation facility with the selected private entity or any
configuration of private entities. An affected jurisdiction may be
a party to a public-private agreement entered into by the
department and a selected private entity or combination of private
entities.
(B) A public-private agreement under this section shall
provide for all of the following:
(1) Planning, acquisition, financing, development, design,
construction, reconstruction, replacement, improvement,
maintenance, management, repair, leasing, or operation of a
transportation facility;
(2) Term of the public-private agreement;
(3) Type of property interest, if any, the private entity
will have in the transportation facility;
(4) A specific plan to ensure proper maintenance of the
transportation facility throughout the term of the agreement and a
return of the facility to the department, if applicable, in good
condition and repair;
(5) Whether user fees, administrative fees, or other charges
will be collected on for use of the transportation facility in
accordance with sections 5531.11 to 5531.18 of the Revised Code
and the basis by which such user fees, administrative fees, or
other charges shall be determined and modified;
(6) Compliance with applicable federal, state, and local
laws;
(7) Grounds for termination of the public-private agreement
by the department or operator;
(8) Disposition of the facility upon completion of the
agreement;
(9) Procedures for amendment of the agreement.;
(10) A contract performance bond in an amount specified by
the director of transportation, conditioned upon the private
entity performing the work in accordance with the agreed upon
terms, within the time prescribed, and in conformance with any
other such terms and conditions as are specified by the director;
(11) A payment bond in an amount specified by the director,
conditioned upon the payment for all labor, work performed, and
materials furnished in connection with the agreement and any other
such terms and conditions as are specified by the director.
(C) A public-private agreement under this section may provide
for any of the following:
(1) Review and approval by the department of the operator's
plans for the development and operation of the transportation
facility;
(2) Inspection by the department of construction of or
improvements to the transportation facility;
(3) Maintenance by the operator of a policy of liability
insurance or self-insurance;
(4) Filing by the operator, on a periodic basis, of
appropriate financial statements in a form acceptable to the
department;
(5) Filing by the operator, on a periodic basis, of traffic
reports in a form acceptable to the department;
(6) Financing obligations of the operator and the department;
(7) Apportionment of expenses between the operator and the
department;
(8) Rights and duties of the operator, the department, and
other state and local governmental entities with respect to use of
the transportation facility;
(9) Rights and remedies available in the event of default or
delay;
(10) Terms and conditions of indemnification of the operator
by the department;
(11) Assignment, subcontracting, or other delegation of
responsibilities of the operator or the department under the
agreement to third parties, including other private entities and
other state agencies;
(12) Sale or lease to the operator of private property
related to the transportation facility;
(13) Traffic enforcement and other policing issues, including
any reimbursement by the private entity for such services.
(D)(1) The director of transportation may include in any
public-private agreement under sections 5501.70 to 5501.83 of the
Revised Code a provision authorizing a binding dispute resolution
method for any controversy subsequently arising out of the
contract. The binding dispute resolution method may proceed only
upon agreement of all parties to the controversy. If all parties
do not agree to proceed to a binding dispute resolution, a party
having a claim against the department shall exhaust its
administrative remedies specified in the public-private agreement
prior to filing any action against the department in the court of
claims.
No appeal from the determination of a technical expert lies
to any court, except that the court of common pleas of Franklin
County may issue an order vacating such a determination upon the
application of any party to the binding dispute resolution if any
of the following applies:
(a) The determination was procured by corruption, fraud, or
undue means.
(b) There was evidence of partiality or corruption on the
part of the technical expert.
(c) The technical expert was guilty of misconduct in refusing
to postpone the hearing, upon sufficient cause shown, or in
refusing to hear evidence pertinent and material to the
controversy, or of any other misbehavior by which the rights of
any party have been prejudiced.
(2) As used in this division, "binding dispute resolution"
means a binding determination after review by a technical expert
of all relevant items, which may include documents, and by
interviewing appropriate personnel and visiting the project site
involved in the controversy. "Binding dispute resolution" does not
involve representation by legal counsel or advocacy by any person
on behalf of any party to the controversy.
(E) No public-private agreement entered into under this
section shall be construed to transfer to a private entity the
director's authority to appropriate property under Chapters 163.,
5501., and 5519. of the Revised Code.
(F) Money collected by the department pursuant to an
agreement entered into under this section shall be deposited into
the state treasury to the credit of the highway operating fund
unless the agreement is related to a toll project under sections
5531.11 to 5531.18 of the Revised Code, in which case the money
shall be deposited as specified in the agreement.
(G) Chapter 5525. of the Revised Code does not apply to
public-private agreements under sections 5501.70 to 5501.83 of the
Revised Code.
Sec. 5501.78. A transportation facility and any tangible
personal property used exclusively with a transportation facility
that is owned by the department of transportation and leased,
licensed, financed, or otherwise conveyed to an operator, or that
is acquired, constructed, or otherwise provided by an operator on
behalf of the department, is exempt from all ad valorem property
taxes and special assessments levied against property by the state
or any political subdivision of the state.
Building and
construction materials that will be incorporated into a
transportation facility pursuant to a public-private agreement are
exempt from the taxes imposed under Chapters 5739. and 5741. of
the Revised Code.
Sec. 5531.11. As used in sections 5531.11 to 5531.18 of the
Revised Code:
(A) "Administrative fee" means a fee imposed by a toll
project operator for toll collection, processing, and related
activities.
(B) "Cost" means all costs of constructing, improving,
repairing, maintaining, administering, financing, and operating
the Ohio transportation system, including all costs payable with
respect to permanent improvements as described in division (B) of
section 133.15 of the Revised Code.
(C) "Electronic-monitoring system" means any form of
electronic or other vehicle sensor or identifying device that
automatically produces one or more photographs, one or more
microphotographs, a videotape, recorded images, or other form of
identifying data of each vehicle at the time it is used or
operated on a toll project.
(D) "Governmental agency" means any state agency, federal
agency, political subdivision, or other local, interstate, or
regional governmental agency, and any combination of those
agencies.
(E) "Highway project" means any project intended for the
highway purpose of supporting the state highway system. A highway
project, whether publicly or privately owned, is a state
infrastructure project as defined in section 5531.10 of the
Revised Code for all purposes of that section and section 5531.09
of the Revised Code and also is a transportation facility as
defined in section 5501.01 of the Revised Code.
"State highway system" or "system" means all existing and
future transportation projects constructed, operated, repaired,
maintained, administered, and operated under the jurisdiction of
the department of transportation, including toll projects and
highway projects.
(F) "Motor vehicle certificate of registration issuance
prevention order" means, relative to the registered owner of a
motor vehicle, an order that prohibits the registrar of motor
vehicles and any deputy registrar from doing both of the
following:
(1) Accepting any application for a new or renewal motor
vehicle certificate of registration in the name of the registered
owner;
(2) Issuing or renewing any motor vehicle certificate of
registration for a motor vehicle that utilized a toll project for
which the required user fee or associated administrative fee was
not paid by the registered owner of that motor vehicle.
(G) "Public roads" means all public highways, roads, and
streets in the state, whether maintained by a state agency or any
other governmental agency.
(H) "Public utility facilities" means tracks, pipes, mains,
conduits, cables, wires, towers, poles, and other equipment and
appliances of any public utility.
(I) "Registered owner" means all of the following:
(1) Any person or entity identified by the bureau of motor
vehicles or any other state motor vehicle bureau, department, or
office as the owner of a motor vehicle;
(2) The lessee of a motor vehicle pursuant to a lease of six
months or longer;
(3) The renter of a motor vehicle pursuant to a written
rental agreement with a motor vehicle renting dealer.
(J) "Revenues" means all nontax revenues coming into the
possession of or under the control of the department by virtue of
sections 5531.11 to 5531.18 of the Revised Code. "Revenues" does
not include proceeds from the sale of obligations but does include
tolls user fees, service revenues, investment income on the Ohio
toll fund established in section 5531.14 of the Revised Code,
rentals, gifts, and grants.
(K) "Service facilities" means service stations, restaurants,
and other facilities for food service, roadside parks and rest
areas, parking, camping, tenting, rest, and sleeping facilities,
hotels or motels, and all similar and other facilities providing
services to the traveling public in connection with the use of a
toll project and owned, leased, licensed, or operated by the
department
of transportation.
(L) "Service revenues" means those revenues of the department
derived from its ownership, leasing, licensing, or operation of
service facilities.
(M) "State highway system" or "system" means all existing and
future transportation projects constructed, operated, repaired,
maintained, administered, and operated under the jurisdiction of
the department of transportation, including toll projects and
highway projects.
(N) "Toll project" means any project for which user fees are
charged that adds new capacity, including construction on existing
highways, bridges, or tunnels where construction increases the
total number of lanes, including toll and nontoll lanes, and does
not decrease the total number of nontoll lanes at each mile. "Toll
project" also means, subject to division (C) of section 5531.12 of
the Revised Code, any project that involves substantial
reconstruction, resurfacing, restoration, rehabilitation, or
replacement of a toll or nontolled highway, bridge, or tunnel,
including an existing highway, bridge, or tunnel, and conversion
of the highway, bridge, or tunnel to a toll project; conversion of
an existing highway, bridge, or tunnel to a toll project; initial
construction of a highway, bridge, or tunnel as a toll project; or
conversion of a high occupancy vehicle lane on a highway, bridge,
or tunnel to a toll project. "Toll project" also includes new
interchanges constructed for economic development purposes
connecting an interstate highway or a multi-lane, fully
controlled-access highway that was not connected previously with
other interstates, state highways and local roads, and any new
high occupancy lane or new highways connecting an intermodal
facility established, constructed, reconstructed, maintained,
repaired, administered, operated, or improved, under the
jurisdiction of the department
of transportation and. "Toll
project" also includes, pursuant to sections 5531.11 to 5531.18 of
the Revised Code, at a location or locations determined by the
director of transportation,
including all bridges, tunnels,
overpasses, underpasses, interchanges, entrance plazas,
approaches, and those portions of connecting public roads that
serve interchanges and are determined by the director to be
necessary for the safe merging of traffic between the toll project
and those nontolled public roads, toll booths, service facilities,
and administration, storage, and other buildings, property, and
facilities that the department considers necessary for the
operation or policing of the toll project, together with all
property and rights that may be acquired by the department for the
construction, maintenance, repair, administration, improvement, or
operation of the toll project, and includes any sections or
extensions of a toll project designated by the department as such
for the particular purpose. Nothing in this section shall be
construed to permit tolls to be charged on existing nontoll
highways.
(O) "Toll project operator" means the department or any
agency, political subdivision, authority, or other entity that
operates a toll project, including a private entity that operates
a toll project pursuant to a public-private agreement authorized
by sections 5501.70 to 5501.83 of the Revised Code.
(P) "Tolls User fee" means tolls a rate, special fees or
permit fees toll, fee, or other
charges by the department to the
owners, lessors, lessees, operators of motor vehicles, or other
users of
charge imposed by a toll project
for the operation or
use of or the right to operate on operator for use of all or part
of a transportation facility, including a toll project.
"User fee"
also includes any such rate, toll, fee, or other charge imposed by
a toll project operator pursuant to a public-private agreement
authorized by sections 5501.70 to 5501.83 of the Revised Code.
Sec. 5531.12. (A) In order to remove present and anticipated
handicaps and potential hazards on the highways in this state, to
facilitate vehicular traffic throughout the state, to promote the
agricultural, commercial, recreational, tourism, and industrial
development of the state, and to provide for the general welfare
of its citizens, the director of transportation may approve toll
projects. Any revenue derived from toll projects shall be used
only for purposes of the toll project, including a toll project or
any aspect of a toll project pursuant to a public-private
agreement authorized by sections 5501.70 to 5501.83 of the Revised
Code, and shall not be expended for any purpose other than as
provided in Section 5a of Article XII, Ohio Constitution. The toll
projects authorized by sections 5531.11 to 5531.18 of the Revised
Code are part of the state highway system.
(B) Any toll project shall be developed and submitted for
selection in accordance with the policies and procedures of the
major new capacity selection process of the transportation review
advisory council, created under Chapter 5512. of the Revised Code.
Each toll project may be separately designated, by name or number,
and may be constructed, improved, or reconstructed as the
department of transportation may from time to time determine
pursuant to sections 5531.11 to 5531.18 of the Revised Code. A
toll project shall be considered a state infrastructure project as
defined in section 5531.10 of the Revised Code for all purposes of
that section and section 5531.09 of the Revised Code and also is a
transportation facility as defined in section 5501.01 of the
Revised Code.
(C) Nothing (1) Except as provided in division (C)(2) of this
section, nothing in this chapter shall be construed to permit
tolls user fees to be charged on existing nontoll public roads.
(2) Division (C)(1) of this section does not apply to user
fees charged for the use of a toll project that consists of the
replacement, improvement, rehabilitation, operation, and
maintenance of a bridge or system of bridges that carries two
interstate highways, neither of which is a three digit partial or
full circumferential, spur, or loop route, over the Ohio river to
another state, and for the replacement, improvement,
rehabilitation, operation, and maintenance of the roadways that
provide ingress to and egress from such a bridge or system of
bridges, generally following the route of those interstate
highways.
Sec. 5531.13. (A) The director of transportation may acquire
or dispose of any public or private property or interests therein
that the director determines to be necessary, convenient, or
proper for the construction, improvement, repair, maintenance,
administration, or operation of toll projects in the same manner
as the director may acquire or dispose of such property for
transportation facilities or highway purposes, under sections
5501.311 to 5501.34 and 5501.45 and Chapter 5519. of the Revised
Code.
(B) The director may enter into any contracts the director
determines to be necessary, convenient, or proper for the
construction, improvement, repair, maintenance, administration, or
operation of toll projects in the manner provided in Chapter 5525.
of the Revised Code or pursuant to a public-private agreement
under sections 5501.70 to 5501.83 of the Revised Code.
(C) The director may enter into any professional contracts
the director determines to be necessary, convenient, or proper for
the construction, improvement, repair, maintenance,
administration, or operation of toll projects in the manner
provided in Chapter 5526. of the Revised Code or pursuant to a
public-private agreement under sections 5501.70 to 5501.83 of the
Revised Code.
(D) Tolls User fees and accounts within the Ohio toll fund
established in section 5531.14 of the Revised Code may be used for
the acquisition of property under division (A) of this section or
pursuant to contracts entered into under division (B) or (C) of
this section to the same extent permitted by section 5531.14 of
the Revised Code with respect to obligations.
Sec. 5531.14. (A) To the extent permitted by federal law,
the director of transportation may fix, revise, charge, and
collect tolls user fees for each toll project, and contract with
any person or governmental agency desiring the use of any part
thereof, including the right-of-way adjoining the paved portion,
for placing thereon telephone, electric light, or power lines,
service facilities, or for any other purpose, and fix the terms,
conditions, rents, and rates of charge for such use; provided,
that no toll user fee, charge, or rental may be made for placing
in, on, along, over, or under the toll project, equipment or
public utility facilities that are necessary to serve service
facilities or to interconnect any public utility facilities.
A toll project operator shall display signs that identify the
applicable user fees, including fees for motor vehicles that do
not have an active, functioning electronic toll collection device
registered for and in use in the vehicle. The toll project
operator shall erect or otherwise display signs in advance of the
toll project at locations that are of distances that are
sufficient to notify motor vehicle operators of the opportunity to
exit the street or highway on which they are traveling before the
street or highway becomes, becomes part of, or otherwise leads to
the toll project and for the use of which user fees apply.
(B) In accordance with Chapter 119. of the Revised Code, the
director shall establish a plan, schedule, or system of tolls user
fees or charges and shall declare the purpose, amount, and
duration of the
tolls user fees or charges. Any proposal to
implement a toll user fee or other charge under this section may
include a plan, schedule, or system of tolls or charges that is
subject to adjustment by the director within and in accordance
with that plan, schedule, or system. As part of the plan,
schedule, or system, the director shall develop a written process
for setting user fee rates. In developing the process, the
director shall seek and consider public comment. In doing so, the
director shall hold at least one public hearing within fifty miles
of the location of the toll project for which the written process
is developed.
(B) For any toll imposed under this section, the department
of transportation may use a system for toll collection that is
capable of charging an account holder the appropriate toll or
charge by transmission of information from an electronic device on
a motor vehicle to the toll lane, which information is used to
charge the account holder the appropriate toll or charge.
(C) One or more tolls, or a portion of any toll, may be
pledged to the repayment of obligations in the bond proceedings
for those obligations and shall be a pledged receipt for those
obligations to the extent pledged in those bond proceedings.
(D) Tolls The director, in accordance with Chapter 119. of
the Revised Code, also may adopt such additional rules as the
director determines necessary for the establishment, collection,
and enforcement of user fees and administrative fees, including
the purpose, amount, and duration of the fees.
(C) One or more user fees, or a portion of any user fees, may
be pledged to the repayment of obligations issued for the purpose
of financing the toll project and shall be a pledged receipt for
those obligations to the extent pledged in the proceedings
authorizing such obligations. One or more user fees, or a portion
of any user fees, also may be pledged to the repayment of
obligations under any public-private agreement or related
financing as provided in sections 5501.70 to 5501.83 of the
Revised Code.
(D) User fees shall be so fixed and adjusted by the director
as to provide funds at least sufficient with other revenues of the
Ohio transportation system, if any, to pay all of the following:
(1) Any bond debt service charges on obligations issued to
pay costs of one or more toll projects as such charges become due
and payable, taking into account any other amounts available for
such purposes;
(2) Any obligations under any public-private agreement
entered into in connection with a toll project as such amounts
become due and payable;
(3) The cost of maintaining, improving, repairing,
constructing, financing and operating toll projects within the
interstate system or the state highway system and its different
parts and sections, and to create and maintain any reserves for
those purposes.
(E) Except as provided in division (F) of this section, money
received from
tolls imposed under this section user fees, other
than those received pursuant to a public-private agreement, which
shall be deposited in accordance with such agreement and shall be
used for the exclusive benefit of such toll project, shall be
deposited to the credit of the Ohio toll fund, which is hereby
created in the state treasury. The treasurer of state may
establish separate subaccounts within the Ohio toll fund as
determined to be necessary or convenient to pay costs of
constructing, improving, repairing, maintaining, administering,
and operating toll projects within the state highway system. Any
remaining money deposited into the Ohio toll fund shall be used at
the discretion of the director to support construction,
improvement, repair, maintenance, administration, and operation
costs for approved toll projects and highway projects within one
mile of a toll project. All investment earnings of the fund shall
be credited to the fund.
(F) The issuing authority shall of obligations issued for the
purpose of financing the toll project, by the fifteenth day of
July of each fiscal year, shall certify or cause to be certified
to the department of transportation and the office of budget and
management the total amount of money required during the current
fiscal year to meet in full all bond debt service charges and
otherwise comply with the requirements of any applicable bond
proceedings and all obligations under any public-private agreement
relating to a toll project as provided in sections 5501.70 to
5501.83 of the Revised Code. The issuing authority shall make or
cause to be made supplemental certifications to the department of
transportation and the office of budget and management for each
bond service payment date and at such other times during each
fiscal year as may be provided in the applicable bond proceedings
proceeding or public-private agreement or required by that
department or office. Bond service charges, costs of credit
enhancement facilities, other financing costs, and any other
amounts required under the applicable bond proceedings and all
amounts required under any applicable public-private agreement
shall be set forth separately in each certification. Money
received from tolls user fees and other pledged receipts shall be
deposited to the credit of the bond service fund at such times and
in such amounts as are necessary to satisfy all those payment
requirements of the applicable bond proceedings. When all or to
the credit of any fund established for such purpose under any
public-private agreement. At such time that bond service charges
on all outstanding bonds issued in connection with any toll
project and the interest on the bonds have been paid, or a
sufficient amount for the payment of all such bonds and the
interest on the bonds to the maturity of the bonds has been set
aside in trust for the benefit of the bondholders, as provided in
the applicable bond proceedings, and at such time as all amounts
due and to become due pursuant to a public-private agreement,
which are payable from user fees, have been paid, the project
shall be operated, improved, and maintained by the department of
transportation as a part of the state highway system and shall be
free of tolls user fees.
Sec. 5531.141. (A) The department of transportation may
collect a user fee by utilizing a system of collection that is
capable of charging an account holder the appropriate user fee by
transmission of information from an electronic toll collection
device on a motor vehicle. In addition, for any motor vehicle that
does not use an electronic toll collection device, the department
may utilize an electronic-monitoring system for user fee
collection.
(B)(1) If a motor vehicle uses a toll project and the user
fee is not paid through an electronic toll collection device or
otherwise, the toll project operator first shall use the
electronic-monitoring system for the toll project to determine if
the registered owner of the motor vehicle has established an
account for the payment of the user fee. If such an account has
been established, the toll project operator shall charge the
account holder the appropriate user fee. If the toll project
operator cannot locate an established account, or if the toll
project operator locates an established account but the account
cannot be charged the appropriate user fee, the toll project
operator may send by regular first class mail an invoice for the
unpaid user fee. The toll project operator shall include with the
invoice the information described in section 5531.143 of the
Revised Code. The toll project operator shall send the invoice to
the registered owner of the motor vehicle as shown in the records
of either of the following:
(a) The bureau of motor vehicles;
(b) The department, division, bureau, office, or other unit
of government of any other state or jurisdiction that is
functionally equivalent to the bureau of motor vehicles.
(2) With respect to any user fee and any associated
administrative fee, the toll project operator, in the toll project
operator's sole discretion, may determine not to pursue collection
of that user fee or administrative fee or to terminate collection
measures in relation to that user fee or administrative fee.
Sec. 5531.142. (A) A person or entity that receives an
invoice under section 5531.141 of the Revised Code or a late
notice under division (C) of this section shall do one of the
following:
(1) Pay the user fee and any administrative fee set forth in
the invoice or late notice directly to the toll project operator
within thirty-five days after the date of mailing of the invoice
or late notice;
(2) File with the toll project operator a notice to contest
liability for the unpaid user fee within thirty-five days after
the date of the mailing of the invoice or late notice by utilizing
the form provided with the invoice or late notice under section
5531.143 of the Revised Code;
(3) If the registered owner is a motor vehicle leasing dealer
or a motor vehicle renting dealer, notify the toll project
operator within thirty-five days after the date of mailing of the
invoice or late notice of the name and address of the person who
was the lessee or renter of the motor vehicle at the time the user
fee was incurred. A motor vehicle leasing dealer or a motor
vehicle renting dealer that receives an invoice or late notice
shall not pay a user fee or any administrative fee and
subsequently attempt to collect a fee or assess the lessee or
renter a charge in excess of the amount actually paid on behalf of
the lessee or renter.
(B) Upon receipt of the name and address of the lessee or
renter of a motor vehicle provided by a motor vehicle leasing
dealer or motor vehicle renting dealer under division (A)(3) of
this section, the toll project operator shall send an invoice to
the lessee or renter of the motor vehicle as described in section
5531.141 of the Revised Code. The toll project operator shall send
all subsequent late notices for the unpaid user fees to the lessee
or renter, and the motor vehicle renting or leasing dealer has no
further liability for unpaid user fees or administrative fees
under this chapter.
(C) If a registered owner fails to pay or contest an invoice
within thirty-five days after the date of mailing of the invoice,
the toll project operator may send to the registered owner by
regular first class mail a late notice containing the information
described in section 5531.143 of the Revised Code. The toll
project operator may charge an administrative fee for each late
notice, the purpose of which is to enable the toll project
operator to recover the expenses of collecting the unpaid user
fee. The director of transportation shall establish the amount of
the administrative fee by rule.
Sec. 5531.143. A toll project operator shall include with
each invoice and late notice all of the following:
(A) The registered owner's name and current known address;
(B) Descriptions and amounts of all user fees and
administrative fees assessed;
(C) A request for payment within thirty-five days after the
date of mailing of such invoice or late notice;
(D) A warning of the potential consequences for failing to
pay the total amount due as indicated in such invoice or late
notice, including additional fees and penalties, potential court
summons, and inability to renew motor vehicle registrations;
(E) Information for disputing the invoice or late notice and
a form that a person may use to file a notice to contest liability
for a user fee or administrative fee;
(F) Contact information for the customer service center for
the applicable toll project; and
(G) Information about obtaining an electronic toll collection
device and establishing an electronic toll collection account.
Sec. 5531.144. (A) The registered owner of a motor vehicle
that utilizes a toll project is liable for payment of the
applicable user fee.
(B)(1) If the registered owner, in response to an invoice
mailed to the registered owner under section 5531.141 of the
Revised Code or a late notice mailed under section 5531.142 of the
Revised Code, submits a notice to contest liability for the user
fee or any administrative fee, the toll project operator shall
schedule a hearing at which the registered owner may contest
liability for the user fee or administrative fee. The toll project
operator shall send written notice by regular first class mail to
the registered owner listing the time and date of the hearing. A
hearing officer of the toll project operator shall preside over
the hearing and shall hold the hearing not later than thirty-five
days after the date of mailing of the hearing notice. The hearing
officer shall conduct the hearing at a location within the county
in which the toll project is located. The registered owner may
present evidence at the hearing as to the reasons why the
registered owner is not liable for payment of the user fee or
administrative fee.
At the hearing, the hearing officer shall determine if the
registered owner is liable for the payment of any user fee or
administrative fee.
(2) Upon a finding by the hearing officer that the registered
owner is not liable for payment of the user fee or administrative
fee, the hearing officer shall enter that finding into the records
of the toll project operator and cancel the invoice.
(3) If the hearing officer finds that the registered owner is
liable for payment of the user fee or any administrative fee, the
hearing officer shall enter that finding into the records of the
toll project operator. If payment in full is not made upon
completion of the hearing, the hearing officer shall notify the
registrar of motor vehicles of the hearing officer's decision that
the registered owner is liable for payment of the user fee or any
administrative fee. The hearing officer also shall include with
the notification to the registrar a motor vehicle certificate of
registration issuance prevention order. The hearing officer shall
give the registered owner a copy of the order. The order remains
in effect until the toll project operator notifies the registrar
that all unpaid user fees and administrative fees have been paid
in full.
If the hearing officer finds that the registered owner is
liable for payment of the user fee or any administrative fee and
the registered owner resides in another state, the hearing officer
shall send notice of the hearing officer's decision to the
department, division, bureau, office, or other unit of government
that is functionally equivalent to the bureau of motor vehicles.
The hearing officer shall include with the notice the registration
prevention order, which shall have the same effect in another
state or jurisdiction as in this state.
(4) If the registered owner does not pay all unpaid user fees
and administrative fees within thirty-five days after the date of
the hearing officer's decision that the registered owner is liable
for payment of such fees, and the registered owner does not file
an appeal described in division (C) of this section within that
same thirty-five-day time period, the toll project operator may
file a civil suit against the registered owner in the municipal
court or county court having jurisdiction over the location of the
toll project as provided in section 5531.146 of the Revised Code.
(C)(1) The registered owner may appeal an adverse finding by
the hearing officer to the municipal court or county court having
jurisdiction over the location of the toll project within
thirty-five days after the date of the hearing officer's decision
that the registered owner is liable for payment of such fees. If
the registered owner fails to file an appeal with the municipal
court or county court within that time period, the registered
owner is considered to have waived the registered owner's right to
appeal the decision of the hearing officer. After that time period
has expired, the toll project operator may file a civil suit
against the registered owner in the municipal court or county
court having jurisdiction over the location of the toll project as
provided in section 5531.146 of the Revised Code.
Upon the filing of a timely appeal by the registered owner,
the clerk of the municipal court or county court shall notify the
registrar of the filing of the appeal by the registered owner. The
motor vehicle certificate of registration issuance prevention
order is automatically stayed pending the results of the appeal in
the municipal court or county court.
(2) At the appeal hearing, the municipal court or county
court shall determine whether the registered owner is liable for
the payment of any user fee or administrative fee. If the court
finds that the registered owner is not liable for payment of the
user fee or administrative fee, the court shall issue a ruling to
that effect and cancel the invoice. The toll project operator
immediately shall inform the registrar of the ruling and shall
direct the registrar to cancel the motor vehicle certificate of
registration issuance prevention order issued under division
(B)(3) of this section.
If the court finds that the registered owner is liable for
payment of the user fee or any administrative fee, the court shall
issue a ruling to that effect. If the court issues such a ruling
and payment in full is not made to the toll project operator upon
completion of the appeal hearing, the toll project operator shall
inform the registrar of motor vehicles of the ruling and the
failure by the registered owner to make payment in full. In that
circumstance, the stay of the motor vehicle certificate of
registration issuance prevention order described in division
(C)(1) of this section terminates and the order becomes effective.
In addition, if the registered owner fails to pay in full the user
fee and any administrative fee within thirty-five days after the
date the court issues the ruling, the toll project operator may
file a civil suit against the registered owner in the municipal
court or county court having jurisdiction over the location of the
toll project as provided in section 5531.146 of the Revised Code.
If, upon completion of the appeal hearing, the registered
owner makes payment in full to the toll project operator of all
user fees and administrative fees that the court ruled the
registered owner was liable for payment, the toll project operator
shall inform the registrar of motor vehicles of the ruling and the
payment in full by the registered owner and direct the registrar
to cancel the motor vehicle certificate of registration issuance
prevention order.
(D) If the registered owner fails to pay an invoice and any
administrative fee and fails to submit a notice to contest
liability for any of those fees within thirty-five days after the
date of mailing of the invoice, the toll project operator may send
a late notice to the registered owner as provided in division (C)
of section 5531.142 of the Revised Code. If, in response to the
late notice, the registered owner submits a notice to contest
liability for the user fee and any administrative fee within
thirty-five days after the date of mailing of the late notice, the
toll project operator shall schedule and hold a hearing as
described in division (B)(1) of this section. Divisions (B)(2),
(3), and (4) and (C)(1) and (2) of this section apply to such a
hearing.
Sec. 5531.145. (A) If the toll project operator sends a late
notice to the registered owner and the registered owner, within
thirty-five days after the date of mailing of the late notice,
fails to pay the user fee and any administrative fee contained in
the late notice and fails to submit a notice to contest liability
for any of those fees, the toll project operator may do either of
the following:
(1) Issue a motor vehicle certificate of registration
issuance prevention order to the registrar of motor vehicles and
send a copy of the order to the registered owner. If the
registered owner resides in another state or jurisdiction, the
toll project operator shall send the order to the department,
division, bureau, office, or other unit of government that is
functionally equivalent to the bureau of motor vehicles. The order
shall have the same effect in another state or jurisdiction as in
this state.
(2) File a civil suit against the registered owner in the
municipal court or county court having jurisdiction over the
location of the toll project as provided in section 5531.146 of
the Revised Code.
(B) If the toll project operator sends a motor vehicle
certificate of registration issuance prevention order to the
registrar under division (A)(1) of this section, the registered
owner may file a request for a hearing in the municipal court or
county having jurisdiction over the location of the toll project
within thirty-five days after the date the toll project operator
sends the order to the registrar. The order shall remain in effect
pending the results of the hearing in the municipal court or
county court. If the registered owner fails to file an appeal with
the municipal court or county court within that thirty-five-day
period, the registered owner is considered to have waived the
registered owner's right to appeal the issuance of the motor
vehicle certificate of registration issuance prevention order. The
toll project operator may file a civil suit against the registered
owner in the municipal court or county court having jurisdiction
over the location of the toll project as provided in section
5531.146 of the Revised Code.
(C)(1) If an appeal hearing is requested under division (B)
of this section, the municipal court or county court shall
determine whether the registered owner is liable for the payment
of any user fee or administrative fee and whether the issuance by
the toll project operator of the motor vehicle certificate of
registration issuance prevention order was valid. If the court
finds that the registered owner is not liable for payment of the
user fee or administrative fee, the court shall issue a ruling to
that effect and dismiss the late notice. The toll project operator
immediately shall inform the registrar of the ruling and shall
direct the registrar to cancel the motor vehicle certificate of
registration issuance prevention order issued under division
(A)(1) of this section.
(2) If the court finds that the registered owner is liable
for payment of the user fee or any administrative fee and that the
issuance by the toll project operator of the motor vehicle
certificate of registration issuance prevention order was valid,
the court shall issue a ruling to that effect. If the court issues
such a ruling and payment in full is not made to the toll project
operator upon completion of the appeal hearing, the toll project
operator shall inform the registrar of motor vehicles of the
ruling and the failure by the registered owner to make payment in
full, and the motor vehicle certificate of registration issuance
prevention order issued under division (A)(1) of this section
remains in effect.
(3) If the court finds that the registered owner is liable
for payment of the user fee or any administrative fee but the
issuance by the toll project operator of the motor vehicle
certificate of registration issuance prevention order was not
valid, the court shall issue a ruling to that effect. If the court
issues such a ruling, the toll project operator shall inform the
registrar of the ruling and direct the registrar to cancel the
motor vehicle certificate of registration issuance prevention
order. The registered owner remains liable for payment of the user
fee or any administrative fee. The toll project operator may
reissue the motor vehicle certificate of registration issuance
prevention order. If the toll project operator reissues the order,
the registered owner may appeal the order as provided in division
(B) of this section.
(4) If, upon completion of the appeal hearing, the registered
owner pays in full to the toll project operator all user fees and
administrative fees for which the court ruled the registered owner
was liable, the toll project operator shall inform the registrar
of the ruling and the payment in full by the registered owner. The
toll project operator also shall direct the registrar to cancel
the motor vehicle certificate of registration issuance prevention
order.
(5) If the court rules under division (C)(2) or (3) of this
section that the registered owner is liable for payment of the
user fee or any administrative fee, and the registered owner does
not pay all such fees within thirty-five days after the court
issues the ruling, the toll project operator may file a civil suit
against the registered owner in the municipal court or county
court having jurisdiction over the location of the toll project as
provided in section 5531.146 of the Revised Code.
(D) At any time after a toll project operator issues an order
under division (A)(1) of this section, the registered owner may
pay all user fees and administrative fees owed to the toll project
operator. If such payment is made, the toll project operator shall
inform the registrar of the payment and shall direct the registrar
to cancel the motor vehicle certificate of registration prevention
order.
Sec. 5531.146. (A)(1) As provided in sections 5531.144 and
5531.145 of the Revised Code, a toll project operator may file a
civil suit against a registered owner in the municipal court or
county court having jurisdiction over the location of the toll
project. The toll project operator also shall file all related
documentation and information described in section 5531.143 of the
Revised Code with the clerk of the municipal court or county
court.
Except as otherwise provided in division (A)(2) of this
section, the toll project operator shall not file such a suit
earlier than thirty-five days after the date of mailing of a late
notice to the registered owner.
(2) In a circumstance in which a registered owner is liable
for multiple user fees and any associated administrative fees
involving one or more motor vehicles, the toll project operator
may file a civil suit addressing all such user fees and
administrative fees; provided, no such suit shall include fees
incurred more than one hundred twenty-five days prior to the date
of filing of such suit.
(3) The clerk of the municipal court or county court shall
execute a summons regarding a suit filed under division (A)(1) of
this section by sending a copy of the summons in accordance with
the rules of civil procedure to the address of the registered
owner of the vehicle as shown in the records of the bureau of
motor vehicles, as identified and provided by a motor vehicle
leasing dealer or motor vehicle renting dealer, or as shown in the
records of the department, division, bureau, office, or other unit
of government of any other state or jurisdiction that is
functionally equivalent to the bureau of motor vehicles. The
issuance of such a summons constitutes sufficient notice to the
registered owner.
The summons shall compel the appearance of the registered
owner to appear in the municipal court or county court, and shall
include notice of the time and place of the trial as well as the
potential civil penalty and any associated costs. The summons also
shall include a statement that the registered owner's motor
vehicle utilized a toll project and therefore the registered owner
incurred liability for payment of the applicable user fee as
provided in division (A) of section 5531.144 of the Revised Code
and also shall list the Revised Code citation for that section.
The summons constitutes sufficient notice to the registered owner
that the vehicle was used on a toll project and, as a result, the
registered owner is liable for payment of the user fee.
(B) Proof that a motor vehicle utilized a toll project and
therefore the registered owner of the motor vehicle is liable for
payment of the applicable user fee shall be evidenced by either or
both of the following:
(1) Information and documentation obtained from an
electronic-monitoring system or electronic toll collection system;
(2) A certificate confirming the identification of the
vehicle issued by a toll project operator that is based on an
inspection of photographs, microphotographs, videotapes, other
recorded images or identifying data produced by an
electronic-monitoring system, or through electronic data collected
by an electronic toll collection system.
The certificate and the documentation attached thereto are
prima facie evidence of the facts contained therein. The court
shall ensure that the certificate and any photographs,
microphotographs, videotapes, or other recorded images or
electronic data evidencing liability for payment of the applicable
user fee are available for inspection in any proceeding to
adjudicate the liability for payment of the user fee.
(C)(1) A registered owner is not liable for a user fee and it
is a complete defense to a cause of action asserting such
liability if within thirty-five days after the mailing of the
invoice, late notice, or a summons, the registered owner of the
motor vehicle produces for the toll project operator or the court
a certified copy of a report of a law enforcement agency showing
both of the following:
(a) The motor vehicle had been reported stolen prior to the
time that the motor vehicle utilized the toll project.
(b) The motor vehicle had remained stolen at the time of the
alleged violation.
(2) The court shall dismiss the case against a registered
owner when divisions (C)(1)(a) and (b) apply.
(D) The toll project operator may offer to the registered
owner the option to pay the unpaid user fee and any administrative
fee, as specified in the summons, plus a reduced civil penalty,
provided that the registered owner actually pays to the toll
project operator the entire amount so calculated not less than
fourteen days prior to the scheduled trial date. The toll project
operator shall establish a schedule for reduced civil penalties
that are offered to registered owners pursuant to this division,
and the toll project operator shall adhere to the schedule when
making such offers. The toll project operator may revise the
schedule from time to time as the toll project operator determines
necessary.
If the registered owner accepts the offer and the toll
project operator receives the entire amount not less than fourteen
days prior to the scheduled trial date, the toll project operator
shall move the court, not less than five business days prior to
the trial date, to dismiss the summons issued to the registered
owner. Upon such a motion, the court shall dismiss the summons and
dismiss the case.
(E)(1) Upon a finding by the municipal court or county court
that the registered owner is liable for payment of the user fee as
provided in division (A) of section 5531.144 of the Revised Code,
the court shall order the registered owner to pay all applicable
court costs, user fees due, and administrative fees. The court
also shall impose a civil penalty upon the registered owner, as
follows:
(a) For a first instance, as shown in the records of the toll
project operator, in which the registered owner was liable for
payment of a user fee and the registered owner did not pay the
user fee and did not submit a timely notice to contest the user
fee and the toll project operator sent both an invoice and a late
notice to the registered owner, seventy-five dollars;
(b) For a second instance as described in division (E)(1)(a)
of this section within one year of a first such instance, one
hundred fifty dollars;
(c) For a third instance as described in division (E)(1)(a)
of this section within two years of a second such instance, two
hundred fifty dollars;
(d) For a fourth or subsequent instance as described in
division (E)(1)(a) of this section within three years of a third
such instance, five hundred dollars.
(2) The clerk of the municipal court or county court shall
pay all user fees, administrative fees, and penalties the court
assesses and collects under this section to the department of
transportation for deposit into the state treasury to the credit
of the highway operating fund or for payment by the department in
accordance with a public-private agreement pursuant to sections
5501.70 to 5501.83 of the Revised Code.
(F)(1) Upon a finding by a court that the registered owner is
liable for payment of a user fee as provided in division (A) of
section 5531.144 of the Revised Code, the court shall issue a
motor vehicle certificate of registration issuance prevention
order. The order shall remain in effect until the court has
notified the registrar that all unpaid user fees, administrative
fees, and civil penalties have been paid in full and the court has
issued a new order rescinding its previous order. The registrar
and all deputy registrars shall comply with the order.
(2) If the registered owner resides in another state or
jurisdiction, the court shall issue a motor vehicle certificate of
registration issuance prevention order and send a copy of the
order to the department, division, bureau, office, or other unit
of government of another state or jurisdiction that is
functionally equivalent to the bureau of motor vehicles for
enforcement in that other state or jurisdiction. The order shall
have the same effect in another state or jurisdiction as in this
state.
(G)(1) A civil penalty imposed pursuant to this section shall
not be made part of the driving record of the person upon whom
such civil penalty is imposed, nor shall it be considered in any
manner for insurance purposes in the provision of motor vehicle
insurance coverage.
(2) No person shall be subject to both this section and to
criminal prosecution under any provision of the Revised Code or
any rule adopted thereunder for nonpayment of user fees or related
administrative fees.
Sec. 5531.147. A toll project operator shall not initiate
collection procedures that are regulated by federal law against a
registered owner in any of the following circumstances:
(A) During the thirty-five-day period after the date of
mailing of an invoice or a late notice to the registered owner;
(B) The registered owner has timely submitted a notice to
contest liability for a user fee or any administrative fee to the
toll project operator. The toll project operator may initiate
collection procedures that are regulated by federal law against
such a registered owner if, at the hearing conducted by the
hearing officer described in section 5533.144 of the Revised Code,
the hearing officer finds that the registered owner is liable for
payment of the user fee or administrative fee at issue and the
registered owner does not pay the fee at issue in full within
thirty-five days after the hearing officer makes the finding.
(C) The registered owner has filed a request for an appeal
hearing with the municipal court or county court having
jurisdiction over the location of the toll project. The toll
project operator may initiate collection procedures that are
regulated by federal law against such a registered owner if, at
the appeal hearing conducted by the municipal court or county
court described in section 5533.144 of the Revised Code, the court
finds that the registered owner is liable for payment of the user
fee or administrative fee at issue and the registered owner does
not pay the fee at issue in full within thirty-five days after the
court issues a ruling to that effect.
(D) The toll project operator has filed a civil suit against
the registered owner in the municipal court or county court having
jurisdiction over the location of the toll project.
Sec. 5531.148. (A) A toll project operator may enter into an
agreement with the bureau of motor vehicles and the department,
division, bureau, office, or other unit of government of any other
state or jurisdiction that is functionally equivalent to the
bureau of motor vehicles to obtain motor vehicle owner and
registration information that is necessary to conduct electronic
toll collection and electronic monitoring.
(B)(1) A toll project operator shall ensure that information
collected by an electronic toll collection device, an
electronic-monitoring system in conjunction with an electronic
toll collection system, or under division (A) of this section is
limited solely to that information that is necessary for the
collection of unpaid user fees and administrative fees; necessary
to establish liability of the registered owner of a motor vehicle
for payment of a user fee as provided in division (A) of section
5531.144 of the Revised Code; or necessary in any proceeding to
establish or confirm such liability.
(2) A toll project operator shall ensure that all images or
other data collected by an electronic toll collection device, an
electronic-monitoring system, or under division (A) of this
section are:
(a) Maintained in a protected database with security that is
at least comparable to the security used for databases operated by
the department of transportation;
(b) Used solely for the collection of unpaid user fees and
administrative fees.
(3) All of the following apply to the images and other data
described in division (B)(2) of this section:
(a) The images and other data are not public records under
section 149.43 of the Revised Code.
(b) A toll project operator or any other person shall not
sell or use the images and data for sales, solicitation, or
marketing purposes. Division (B)(3)(b) of this section does not
prohibit the department of transportation or the toll project
operator from using the images and data to facilitate collection
or payment of user fees and administrative fees.
(c) A toll project operator or any other person shall not
disclose the images and data to any other entity except to a
registered owner who contests liability for and challenges the
imposition of a user fee or administrative fee; or except as may
be necessary for the collection of unpaid user fees or
administrative fees.
(d) The images and data shall not be used in any court in a
pending action or proceeding except upon an order from a court of
competent jurisdiction or unless the action or proceeding relates
to the liability of the registered owner of a motor vehicle for
payment of a user fee as provided in division (A) of section
5531.144 of the Revised Code.
(4)(a) Except as otherwise provided in this section, a toll
project operator shall not retain any images or other data
collected by an electronic toll collection device, an
electronic-monitoring system, or under division (A) of this
section and shall purge, write over, or otherwise eliminate, from
existence the images or other data not later than one hundred
eighty days after the collection of any unpaid user fees or
administrative fees. Upon request from the director of
transportation, any entity operating an electronic toll collection
system or electronic-monitoring system in conjunction with an
electronic toll collection system shall certify compliance with
this section and, upon request, shall make all records pertaining
to such system available for inspection and audit by the director
or the director's designee.
(b) No entity operating an electronic toll collection system
or electronic-monitoring system in conjunction with an electronic
toll collection system shall fail to certify compliance with this
section or fail, upon request, to make all records pertaining to
such system available for inspection and audit by the director or
the director's designee.
(5) Whoever violates division (B)(4)(b) of this section is
guilty of a minor misdemeanor on a first offense and a misdemeanor
of the fourth degree on each subsequent offense.
Sec. 5531.149. (A) A toll project operator shall compensate
the bureau of motor vehicles for its actions in enforcing sections
5531.11 to 5531.18 of the Revised Code with respect to the
registered owner of a motor vehicle that is titled or registered
in this state. The toll project operator shall provide such
compensation by collecting and paying to the bureau, on a monthly
basis, an administrative fee of five dollars for each certificate
of registration issuance prevention order sent to and processed by
the bureau under sections 5531.11 to 5531.18 of the Revised Code.
The bureau shall deposit all money it collects under this division
in the state treasury to the credit of the state bureau of motor
vehicles fund created in section 4501.25 of the Revised Code.
(B) The director of transportation may enter into an
agreement with the department, division, bureau, office, or other
unit of government of any other state or jurisdiction that is
functionally equivalent to the department of transportation or the
bureau of motor vehicles for the purpose of enforcing sections
5531.11 to 5531.18 of the Revised Code with respect to the
registered owner of a motor vehicle that is titled or registered
in such other state or jurisdiction and utilizes a toll project.
The agreement may provide for the denial in such other state or
jurisdiction of the issuance of a new or renewal motor vehicle
certificate of registration in the name of that person and the
denial of any motor vehicle certificate of registration for the
motor vehicle that utilized a toll project for which the required
user fee or associated administrative fee was not paid by the
registered owner.
Sec. 5531.15. (A) The director of transportation, in
accordance with Chapter 119. of the Revised Code, may adopt such
rules as the director considers advisable for the control and
regulation of traffic on any toll project, for the protection and
preservation of property under the jurisdiction and control of the
department of transportation, for the maintenance and preservation
of good order within the property under its control, and for the
purpose of establishing owner or operator liability for failure to
comply with toll collection rules.
(B) The rules shall provide that public police officers all
of the following persons shall be afforded ready access, while in
the performance of their official duties, to all property under
the jurisdiction of the department of transportation and without
the payment of tolls any user fee:
(1) Public police officers;
(2) Operators of municipal, township, county, and state
maintenance vehicles;
(3) Operators of United States military vehicles traveling in
a convoy;
(4) Operators of official emergency response vehicles.
(C) No person shall violate any such rules of the department
of transportation.
(D)(1) All fines collected for the violation of applicable
laws of the state and the rules of the department of
transportation or money arising from bonds forfeited for such
violation shall be disposed of in accordance with section 5503.04
of the Revised Code.
(2) All fees or charges assessed by the department of
transportation in accordance with this section against an owner or
operator of a vehicle as a civil violation for failure to comply
with toll collection rules shall be revenues of the department.
Sec. 5531.16. (A) Each toll project shall be maintained and
kept in good condition and repair by the department of
transportation or in accordance with the terms of a public-private
agreement pursuant to sections 5501.70 to 5501.83 of the Revised
Code. Toll projects shall be operated by toll collectors and other
employees and agents that the department employs or contracts for.
Toll projects shall be policed by the state highway patrol in
accordance with section 5503.02 of the Revised Code; provided,
that the state highway patrol also shall enforce all rules of the
department adopted under division (A) of section 5531.15 of the
Revised Code that relate to the operation and use of vehicles on a
toll project and that are punishable under division (A) of section
5531.99 of the Revised Code.
(B) An action for damages against the state for any public or
private property damaged or destroyed in carrying out the powers
granted by sections 5531.11 to 5531.18 of the Revised Code shall
be filed in the court of claims pursuant to Chapter 2743. of the
Revised Code.
(C) All governmental agencies may lease, lend, grant, or
convey to the department of transportation at its request, upon
terms that the proper authorities of the governmental agencies
consider reasonable and fair and without the necessity for an
advertisement, order of court, or other action or formality, other
than the regular and formal action of the authorities concerned,
any property that is necessary or convenient to the effectuation
of the purposes of sections 5531.11 to 5531.18 of the Revised
Code, including public roads and other property already devoted to
public use.
(D) Each bridge constituting part of a toll project shall be
considered a bridge on the state highway system for purposes of
sections 5501.47 and 5501.49 of the Revised Code.
(E) In accordance with Chapter 5501. of the Revised Code, the
department of transportation shall make an annual report of its
toll project activities for the preceding calendar year to the
governor and the general assembly.
Sec. 5739.02. For the purpose of providing revenue with
which to meet the needs of the state, for the use of the general
revenue fund of the state, for the purpose of securing a thorough
and efficient system of common schools throughout the state, for
the purpose of affording revenues, in addition to those from
general property taxes, permitted under constitutional
limitations, and from other sources, for the support of local
governmental functions, and for the purpose of reimbursing the
state for the expense of administering this chapter, an excise tax
is hereby levied on each retail sale made in this state.
(A)(1) The tax shall be collected as provided in section
5739.025 of the Revised Code. The rate of the tax shall be five
and three-fourths per cent. The tax applies and is collectible
when the sale is made, regardless of the time when the price is
paid or delivered.
(2) In the case of the lease or rental, with a fixed term of
more than thirty days or an indefinite term with a minimum period
of more than thirty days, of any motor vehicles designed by the
manufacturer to carry a load of not more than one ton, watercraft,
outboard motor, or aircraft, or of any tangible personal property,
other than motor vehicles designed by the manufacturer to carry a
load of more than one ton, to be used by the lessee or renter
primarily for business purposes, the tax shall be collected by the
vendor at the time the lease or rental is consummated and shall be
calculated by the vendor on the basis of the total amount to be
paid by the lessee or renter under the lease agreement. If the
total amount of the consideration for the lease or rental includes
amounts that are not calculated at the time the lease or rental is
executed, the tax shall be calculated and collected by the vendor
at the time such amounts are billed to the lessee or renter. In
the case of an open-end lease or rental, the tax shall be
calculated by the vendor on the basis of the total amount to be
paid during the initial fixed term of the lease or rental, and for
each subsequent renewal period as it comes due. As used in this
division, "motor vehicle" has the same meaning as in section
4501.01 of the Revised Code, and "watercraft" includes an outdrive
unit attached to the watercraft.
A lease with a renewal clause and a termination penalty or
similar provision that applies if the renewal clause is not
exercised is presumed to be a sham transaction. In such a case,
the tax shall be calculated and paid on the basis of the entire
length of the lease period, including any renewal periods, until
the termination penalty or similar provision no longer applies.
The taxpayer shall bear the burden, by a preponderance of the
evidence, that the transaction or series of transactions is not a
sham transaction.
(3) Except as provided in division (A)(2) of this section, in
the case of a sale, the price of which consists in whole or in
part of the lease or rental of tangible personal property, the tax
shall be measured by the installments of that lease or rental.
(4) In the case of a sale of a physical fitness facility
service or recreation and sports club service, the price of which
consists in whole or in part of a membership for the receipt of
the benefit of the service, the tax applicable to the sale shall
be measured by the installments thereof.
(B) The tax does not apply to the following:
(1) Sales to the state or any of its political subdivisions,
or to any other state or its political subdivisions if the laws of
that state exempt from taxation sales made to this state and its
political subdivisions;
(2) Sales of food for human consumption off the premises
where sold;
(3) Sales of food sold to students only in a cafeteria,
dormitory, fraternity, or sorority maintained in a private,
public, or parochial school, college, or university;
(4) Sales of newspapers and sales or transfers of magazines
distributed as controlled circulation publications;
(5) The furnishing, preparing, or serving of meals without
charge by an employer to an employee provided the employer records
the meals as part compensation for services performed or work
done;
(6) Sales of motor fuel upon receipt, use, distribution, or
sale of which in this state a tax is imposed by the law of this
state, but this exemption shall not apply to the sale of motor
fuel on which a refund of the tax is allowable under division (A)
of section 5735.14 of the Revised Code; and the tax commissioner
may deduct the amount of tax levied by this section applicable to
the price of motor fuel when granting a refund of motor fuel tax
pursuant to division (A) of section 5735.14 of the Revised Code
and shall cause the amount deducted to be paid into the general
revenue fund of this state;
(7) Sales of natural gas by a natural gas company, of water
by a water-works company, or of steam by a heating company, if in
each case the thing sold is delivered to consumers through pipes
or conduits, and all sales of communications services by a
telegraph company, all terms as defined in section 5727.01 of the
Revised Code, and sales of electricity delivered through wires;
(8) Casual sales by a person, or auctioneer employed directly
by the person to conduct such sales, except as to such sales of
motor vehicles, watercraft or outboard motors required to be
titled under section 1548.06 of the Revised Code, watercraft
documented with the United States coast guard, snowmobiles, and
all-purpose vehicles as defined in section 4519.01 of the Revised
Code;
(9)(a) Sales of services or tangible personal property, other
than motor vehicles, mobile homes, and manufactured homes, by
churches, organizations exempt from taxation under section
501(c)(3) of the Internal Revenue Code of 1986, or nonprofit
organizations operated exclusively for charitable purposes as
defined in division (B)(12) of this section, provided that the
number of days on which such tangible personal property or
services, other than items never subject to the tax, are sold does
not exceed six in any calendar year, except as otherwise provided
in division (B)(9)(b) of this section. If the number of days on
which such sales are made exceeds six in any calendar year, the
church or organization shall be considered to be engaged in
business and all subsequent sales by it shall be subject to the
tax. In counting the number of days, all sales by groups within a
church or within an organization shall be considered to be sales
of that church or organization.
(b) The limitation on the number of days on which tax-exempt
sales may be made by a church or organization under division
(B)(9)(a) of this section does not apply to sales made by student
clubs and other groups of students of a primary or secondary
school, or a parent-teacher association, booster group, or similar
organization that raises money to support or fund curricular or
extracurricular activities of a primary or secondary school.
(c) Divisions (B)(9)(a) and (b) of this section do not apply
to sales by a noncommercial educational radio or television
broadcasting station.
(10) Sales not within the taxing power of this state under
the Constitution or laws of the United States or the Constitution
of this state;
(11) Except for transactions that are sales under division
(B)(3)(r) of section 5739.01 of the Revised Code, the
transportation of persons or property, unless the transportation
is by a private investigation and security service;
(12) Sales of tangible personal property or services to
churches, to organizations exempt from taxation under section
501(c)(3) of the Internal Revenue Code of 1986, and to any other
nonprofit organizations operated exclusively for charitable
purposes in this state, no part of the net income of which inures
to the benefit of any private shareholder or individual, and no
substantial part of the activities of which consists of carrying
on propaganda or otherwise attempting to influence legislation;
sales to offices administering one or more homes for the aged or
one or more hospital facilities exempt under section 140.08 of the
Revised Code; and sales to organizations described in division (D)
of section 5709.12 of the Revised Code.
"Charitable purposes" means the relief of poverty; the
improvement of health through the alleviation of illness, disease,
or injury; the operation of an organization exclusively for the
provision of professional, laundry, printing, and purchasing
services to hospitals or charitable institutions; the operation of
a home for the aged, as defined in section 5701.13 of the Revised
Code; the operation of a radio or television broadcasting station
that is licensed by the federal communications commission as a
noncommercial educational radio or television station; the
operation of a nonprofit animal adoption service or a county
humane society; the promotion of education by an institution of
learning that maintains a faculty of qualified instructors,
teaches regular continuous courses of study, and confers a
recognized diploma upon completion of a specific curriculum; the
operation of a parent-teacher association, booster group, or
similar organization primarily engaged in the promotion and
support of the curricular or extracurricular activities of a
primary or secondary school; the operation of a community or area
center in which presentations in music, dramatics, the arts, and
related fields are made in order to foster public interest and
education therein; the production of performances in music,
dramatics, and the arts; or the promotion of education by an
organization engaged in carrying on research in, or the
dissemination of, scientific and technological knowledge and
information primarily for the public.
Nothing in this division shall be deemed to exempt sales to
any organization for use in the operation or carrying on of a
trade or business, or sales to a home for the aged for use in the
operation of independent living facilities as defined in division
(A) of section 5709.12 of the Revised Code.
(13) Building and construction materials and services sold to
construction contractors for incorporation into a structure or
improvement to real property under a construction contract with
this state or a political subdivision of this state, or with the
United States government or any of its agencies; building and
construction materials and services sold to construction
contractors for incorporation into a structure or improvement to
real property that are accepted for ownership by this state or any
of its political subdivisions, or by the United States government
or any of its agencies at the time of completion of the structures
or improvements; building and construction materials sold to
construction contractors for incorporation into a horticulture
structure or livestock structure for a person engaged in the
business of horticulture or producing livestock; building
materials and services sold to a construction contractor for
incorporation into a house of public worship or religious
education, or a building used exclusively for charitable purposes
under a construction contract with an organization whose purpose
is as described in division (B)(12) of this section; building
materials and services sold to a construction contractor for
incorporation into a building under a construction contract with
an organization exempt from taxation under section 501(c)(3) of
the Internal Revenue Code of 1986 when the building is to be used
exclusively for the organization's exempt purposes; building and
construction materials sold for incorporation into the original
construction of a sports facility under section 307.696 of the
Revised Code; building and construction materials and services
sold to a construction contractor for incorporation into real
property outside this state if such materials and services, when
sold to a construction contractor in the state in which the real
property is located for incorporation into real property in that
state, would be exempt from a tax on sales levied by that state;
building and construction materials for incorporation into a
transportation facility pursuant to a public-private agreement
entered into under sections 5501.70 to 5501.83 of the Revised
Code; and, until one calendar year after the construction of a
convention center that qualifies for property tax exemption under
section 5709.084 of the Revised Code is completed, building and
construction materials and services sold to a construction
contractor for incorporation into the real property comprising
that convention center;
(14) Sales of ships or vessels or rail rolling stock used or
to be used principally in interstate or foreign commerce, and
repairs, alterations, fuel, and lubricants for such ships or
vessels or rail rolling stock;
(15) Sales to persons primarily engaged in any of the
activities mentioned in division (B)(42)(a), (g), or (h) of this
section, to persons engaged in making retail sales, or to persons
who purchase for sale from a manufacturer tangible personal
property that was produced by the manufacturer in accordance with
specific designs provided by the purchaser, of packages, including
material, labels, and parts for packages, and of machinery,
equipment, and material for use primarily in packaging tangible
personal property produced for sale, including any machinery,
equipment, and supplies used to make labels or packages, to
prepare packages or products for labeling, or to label packages or
products, by or on the order of the person doing the packaging, or
sold at retail. "Packages" includes bags, baskets, cartons,
crates, boxes, cans, bottles, bindings, wrappings, and other
similar devices and containers, but does not include motor
vehicles or bulk tanks, trailers, or similar devices attached to
motor vehicles. "Packaging" means placing in a package. Division
(B)(15) of this section does not apply to persons engaged in
highway transportation for hire.
(16) Sales of food to persons using supplemental nutrition
assistance program benefits to purchase the food. As used in this
division, "food" has the same meaning as in 7 U.S.C. 2012 and
federal regulations adopted pursuant to the Food and Nutrition Act
of 2008.
(17) Sales to persons engaged in farming, agriculture,
horticulture, or floriculture, of tangible personal property for
use or consumption primarily in the production by farming,
agriculture, horticulture, or floriculture of other tangible
personal property for use or consumption primarily in the
production of tangible personal property for sale by farming,
agriculture, horticulture, or floriculture; or material and parts
for incorporation into any such tangible personal property for use
or consumption in production; and of tangible personal property
for such use or consumption in the conditioning or holding of
products produced by and for such use, consumption, or sale by
persons engaged in farming, agriculture, horticulture, or
floriculture, except where such property is incorporated into real
property;
(18) Sales of drugs for a human being that may be dispensed
only pursuant to a prescription; insulin as recognized in the
official United States pharmacopoeia; urine and blood testing
materials when used by diabetics or persons with hypoglycemia to
test for glucose or acetone; hypodermic syringes and needles when
used by diabetics for insulin injections; epoetin alfa when
purchased for use in the treatment of persons with medical
disease; hospital beds when purchased by hospitals, nursing homes,
or other medical facilities; and medical oxygen and medical
oxygen-dispensing equipment when purchased by hospitals, nursing
homes, or other medical facilities;
(19) Sales of prosthetic devices, durable medical equipment
for home use, or mobility enhancing equipment, when made pursuant
to a prescription and when such devices or equipment are for use
by a human being.
(20) Sales of emergency and fire protection vehicles and
equipment to nonprofit organizations for use solely in providing
fire protection and emergency services, including trauma care and
emergency medical services, for political subdivisions of the
state;
(21) Sales of tangible personal property manufactured in this
state, if sold by the manufacturer in this state to a retailer for
use in the retail business of the retailer outside of this state
and if possession is taken from the manufacturer by the purchaser
within this state for the sole purpose of immediately removing the
same from this state in a vehicle owned by the purchaser;
(22) Sales of services provided by the state or any of its
political subdivisions, agencies, instrumentalities, institutions,
or authorities, or by governmental entities of the state or any of
its political subdivisions, agencies, instrumentalities,
institutions, or authorities;
(23) Sales of motor vehicles to nonresidents of this state
under the circumstances described in division (B) of section
5739.029 of the Revised Code;
(24) Sales to persons engaged in the preparation of eggs for
sale of tangible personal property used or consumed directly in
such preparation, including such tangible personal property used
for cleaning, sanitizing, preserving, grading, sorting, and
classifying by size; packages, including material and parts for
packages, and machinery, equipment, and material for use in
packaging eggs for sale; and handling and transportation equipment
and parts therefor, except motor vehicles licensed to operate on
public highways, used in intraplant or interplant transfers or
shipment of eggs in the process of preparation for sale, when the
plant or plants within or between which such transfers or
shipments occur are operated by the same person. "Packages"
includes containers, cases, baskets, flats, fillers, filler flats,
cartons, closure materials, labels, and labeling materials, and
"packaging" means placing therein.
(25)(a) Sales of water to a consumer for residential use;
(b) Sales of water by a nonprofit corporation engaged
exclusively in the treatment, distribution, and sale of water to
consumers, if such water is delivered to consumers through pipes
or tubing.
(26) Fees charged for inspection or reinspection of motor
vehicles under section 3704.14 of the Revised Code;
(27) Sales to persons licensed to conduct a food service
operation pursuant to section 3717.43 of the Revised Code, of
tangible personal property primarily used directly for the
following:
(a) To prepare food for human consumption for sale;
(b) To preserve food that has been or will be prepared for
human consumption for sale by the food service operator, not
including tangible personal property used to display food for
selection by the consumer;
(c) To clean tangible personal property used to prepare or
serve food for human consumption for sale.
(28) Sales of animals by nonprofit animal adoption services
or county humane societies;
(29) Sales of services to a corporation described in division
(A) of section 5709.72 of the Revised Code, and sales of tangible
personal property that qualifies for exemption from taxation under
section 5709.72 of the Revised Code;
(30) Sales and installation of agricultural land tile, as
defined in division (B)(5)(a) of section 5739.01 of the Revised
Code;
(31) Sales and erection or installation of portable grain
bins, as defined in division (B)(5)(b) of section 5739.01 of the
Revised Code;
(32) The sale, lease, repair, and maintenance of, parts for,
or items attached to or incorporated in, motor vehicles that are
primarily used for transporting tangible personal property
belonging to others by a person engaged in highway transportation
for hire, except for packages and packaging used for the
transportation of tangible personal property;
(33) Sales to the state headquarters of any veterans'
organization in this state that is either incorporated and issued
a charter by the congress of the United States or is recognized by
the United States veterans administration, for use by the
headquarters;
(34) Sales to a telecommunications service vendor, mobile
telecommunications service vendor, or satellite broadcasting
service vendor of tangible personal property and services used
directly and primarily in transmitting, receiving, switching, or
recording any interactive, one- or two-way electromagnetic
communications, including voice, image, data, and information,
through the use of any medium, including, but not limited to,
poles, wires, cables, switching equipment, computers, and record
storage devices and media, and component parts for the tangible
personal property. The exemption provided in this division shall
be in lieu of all other exemptions under division (B)(42)(a) or
(n) of this section to which the vendor may otherwise be entitled,
based upon the use of the thing purchased in providing the
telecommunications, mobile telecommunications, or satellite
broadcasting service.
(35)(a) Sales where the purpose of the consumer is to use or
consume the things transferred in making retail sales and
consisting of newspaper inserts, catalogues, coupons, flyers, gift
certificates, or other advertising material that prices and
describes tangible personal property offered for retail sale.
(b) Sales to direct marketing vendors of preliminary
materials such as photographs, artwork, and typesetting that will
be used in printing advertising material; and of printed matter
that offers free merchandise or chances to win sweepstake prizes
and that is mailed to potential customers with advertising
material described in division (B)(35)(a) of this section;
(c) Sales of equipment such as telephones, computers,
facsimile machines, and similar tangible personal property
primarily used to accept orders for direct marketing retail sales.
(d) Sales of automatic food vending machines that preserve
food with a shelf life of forty-five days or less by refrigeration
and dispense it to the consumer.
For purposes of division (B)(35) of this section, "direct
marketing" means the method of selling where consumers order
tangible personal property by United States mail, delivery
service, or telecommunication and the vendor delivers or ships the
tangible personal property sold to the consumer from a warehouse,
catalogue distribution center, or similar fulfillment facility by
means of the United States mail, delivery service, or common
carrier.
(36) Sales to a person engaged in the business of
horticulture or producing livestock of materials to be
incorporated into a horticulture structure or livestock structure;
(37) Sales of personal computers, computer monitors, computer
keyboards, modems, and other peripheral computer equipment to an
individual who is licensed or certified to teach in an elementary
or a secondary school in this state for use by that individual in
preparation for teaching elementary or secondary school students;
(38) Sales to a professional racing team of any of the
following:
(a) Motor racing vehicles;
(b) Repair services for motor racing vehicles;
(c) Items of property that are attached to or incorporated in
motor racing vehicles, including engines, chassis, and all other
components of the vehicles, and all spare, replacement, and
rebuilt parts or components of the vehicles; except not including
tires, consumable fluids, paint, and accessories consisting of
instrumentation sensors and related items added to the vehicle to
collect and transmit data by means of telemetry and other forms of
communication.
(39) Sales of used manufactured homes and used mobile homes,
as defined in section 5739.0210 of the Revised Code, made on or
after January 1, 2000;
(40) Sales of tangible personal property and services to a
provider of electricity used or consumed directly and primarily in
generating, transmitting, or distributing electricity for use by
others, including property that is or is to be incorporated into
and will become a part of the consumer's production, transmission,
or distribution system and that retains its classification as
tangible personal property after incorporation; fuel or power used
in the production, transmission, or distribution of electricity;
energy conversion equipment as defined in section 5727.01 of the
Revised Code; and tangible personal property and services used in
the repair and maintenance of the production, transmission, or
distribution system, including only those motor vehicles as are
specially designed and equipped for such use. The exemption
provided in this division shall be in lieu of all other exemptions
in division (B)(42)(a) or (n) of this section to which a provider
of electricity may otherwise be entitled based on the use of the
tangible personal property or service purchased in generating,
transmitting, or distributing electricity.
(41) Sales to a person providing services under division
(B)(3)(r) of section 5739.01 of the Revised Code of tangible
personal property and services used directly and primarily in
providing taxable services under that section.
(42) Sales where the purpose of the purchaser is to do any of
the following:
(a) To incorporate the thing transferred as a material or a
part into tangible personal property to be produced for sale by
manufacturing, assembling, processing, or refining; or to use or
consume the thing transferred directly in producing tangible
personal property for sale by mining, including, without
limitation, the extraction from the earth of all substances that
are classed geologically as minerals, production of crude oil and
natural gas, or directly in the rendition of a public utility
service, except that the sales tax levied by this section shall be
collected upon all meals, drinks, and food for human consumption
sold when transporting persons. Persons engaged in rendering
services in the exploration for, and production of, crude oil and
natural gas for others are deemed engaged directly in the
exploration for, and production of, crude oil and natural gas.
This paragraph does not exempt from "retail sale" or "sales at
retail" the sale of tangible personal property that is to be
incorporated into a structure or improvement to real property.
(b) To hold the thing transferred as security for the
performance of an obligation of the vendor;
(c) To resell, hold, use, or consume the thing transferred as
evidence of a contract of insurance;
(d) To use or consume the thing directly in commercial
fishing;
(e) To incorporate the thing transferred as a material or a
part into, or to use or consume the thing transferred directly in
the production of, magazines distributed as controlled circulation
publications;
(f) To use or consume the thing transferred in the production
and preparation in suitable condition for market and sale of
printed, imprinted, overprinted, lithographic, multilithic,
blueprinted, photostatic, or other productions or reproductions of
written or graphic matter;
(g) To use the thing transferred, as described in section
5739.011 of the Revised Code, primarily in a manufacturing
operation to produce tangible personal property for sale;
(h) To use the benefit of a warranty, maintenance or service
contract, or similar agreement, as described in division (B)(7) of
section 5739.01 of the Revised Code, to repair or maintain
tangible personal property, if all of the property that is the
subject of the warranty, contract, or agreement would not be
subject to the tax imposed by this section;
(i) To use the thing transferred as qualified research and
development equipment;
(j) To use or consume the thing transferred primarily in
storing, transporting, mailing, or otherwise handling purchased
sales inventory in a warehouse, distribution center, or similar
facility when the inventory is primarily distributed outside this
state to retail stores of the person who owns or controls the
warehouse, distribution center, or similar facility, to retail
stores of an affiliated group of which that person is a member, or
by means of direct marketing. This division does not apply to
motor vehicles registered for operation on the public highways. As
used in this division, "affiliated group" has the same meaning as
in division (B)(3)(e) of section 5739.01 of the Revised Code and
"direct marketing" has the same meaning as in division (B)(35) of
this section.
(k) To use or consume the thing transferred to fulfill a
contractual obligation incurred by a warrantor pursuant to a
warranty provided as a part of the price of the tangible personal
property sold or by a vendor of a warranty, maintenance or service
contract, or similar agreement the provision of which is defined
as a sale under division (B)(7) of section 5739.01 of the Revised
Code;
(l) To use or consume the thing transferred in the production
of a newspaper for distribution to the public;
(m) To use tangible personal property to perform a service
listed in division (B)(3) of section 5739.01 of the Revised Code,
if the property is or is to be permanently transferred to the
consumer of the service as an integral part of the performance of
the service;
(n) To use or consume the thing transferred primarily in
producing tangible personal property for sale by farming,
agriculture, horticulture, or floriculture. Persons engaged in
rendering farming, agriculture, horticulture, or floriculture
services for others are deemed engaged primarily in farming,
agriculture, horticulture, or floriculture. This paragraph does
not exempt from "retail sale" or "sales at retail" the sale of
tangible personal property that is to be incorporated into a
structure or improvement to real property.
(o) To use or consume the thing transferred in acquiring,
formatting, editing, storing, and disseminating data or
information by electronic publishing.
As used in division (B)(42) of this section, "thing" includes
all transactions included in divisions (B)(3)(a), (b), and (e) of
section 5739.01 of the Revised Code.
(43) Sales conducted through a coin operated device that
activates vacuum equipment or equipment that dispenses water,
whether or not in combination with soap or other cleaning agents
or wax, to the consumer for the consumer's use on the premises in
washing, cleaning, or waxing a motor vehicle, provided no other
personal property or personal service is provided as part of the
transaction.
(44) Sales of replacement and modification parts for engines,
airframes, instruments, and interiors in, and paint for, aircraft
used primarily in a fractional aircraft ownership program, and
sales of services for the repair, modification, and maintenance of
such aircraft, and machinery, equipment, and supplies primarily
used to provide those services.
(45) Sales of telecommunications service that is used
directly and primarily to perform the functions of a call center.
As used in this division, "call center" means any physical
location where telephone calls are placed or received in high
volume for the purpose of making sales, marketing, customer
service, technical support, or other specialized business
activity, and that employs at least fifty individuals that engage
in call center activities on a full-time basis, or sufficient
individuals to fill fifty full-time equivalent positions.
(46) Sales by a telecommunications service vendor of 900
service to a subscriber. This division does not apply to
information services, as defined in division (FF) of section
5739.01 of the Revised Code.
(47) Sales of value-added non-voice data service. This
division does not apply to any similar service that is not
otherwise a telecommunications service.
(48)(a) Sales of machinery, equipment, and software to a
qualified direct selling entity for use in a warehouse or
distribution center primarily for storing, transporting, or
otherwise handling inventory that is held for sale to independent
salespersons who operate as direct sellers and that is held
primarily for distribution outside this state;
(b) As used in division (B)(48)(a) of this section:
(i) "Direct seller" means a person selling consumer products
to individuals for personal or household use and not from a fixed
retail location, including selling such product at in-home product
demonstrations, parties, and other one-on-one selling.
(ii) "Qualified direct selling entity" means an entity
selling to direct sellers at the time the entity enters into a tax
credit agreement with the tax credit authority pursuant to section
122.17 of the Revised Code, provided that the agreement was
entered into on or after January 1, 2007. Neither contingencies
relevant to the granting of, nor later developments with respect
to, the tax credit shall impair the status of the qualified direct
selling entity under division (B)(48) of this section after
execution of the tax credit agreement by the tax credit authority.
(c) Division (B)(48) of this section is limited to machinery,
equipment, and software first stored, used, or consumed in this
state within the period commencing June 24, 2008, and ending on
the date that is five years after that date.
(49) Sales of materials, parts, equipment, or engines used in
the repair or maintenance of aircraft or avionics systems of such
aircraft, and sales of repair, remodeling, replacement, or
maintenance services in this state performed on aircraft or on an
aircraft's avionics, engine, or component materials or parts. As
used in division (B)(49) of this section, "aircraft" means
aircraft of more than six thousand pounds maximum certified
takeoff weight or used exclusively in general aviation.
(50) Sales of full flight simulators that are used for pilot
or flight-crew training, sales of repair or replacement parts or
components, and sales of repair or maintenance services for such
full flight simulators. "Full flight simulator" means a replica of
a specific type, or make, model, and series of aircraft cockpit.
It includes the assemblage of equipment and computer programs
necessary to represent aircraft operations in ground and flight
conditions, a visual system providing an out-of-the-cockpit view,
and a system that provides cues at least equivalent to those of a
three-degree-of-freedom motion system, and has the full range of
capabilities of the systems installed in the device as described
in appendices A and B of part 60 of chapter 1 of title 14 of the
Code of Federal Regulations.
(51) Any transfer or lease of tangible personal property
between the state and JobsOhio in accordance with section 4313.02
of the Revised Code.
(52)(a) Sales to a qualifying corporation.
(b) As used in division (B)(52) of this section:
(i) "Qualifying corporation" means a nonprofit corporation
organized in this state that leases from an eligible county land,
buildings, structures, fixtures, and improvements to the land that
are part of or used in a public recreational facility used by a
major league professional athletic team or a class A to class AAA
minor league affiliate of a major league professional athletic
team for a significant portion of the team's home schedule,
provided the following apply:
(I) The facility is leased from the eligible county pursuant
to a lease that requires substantially all of the revenue from the
operation of the business or activity conducted by the nonprofit
corporation at the facility in excess of operating costs, capital
expenditures, and reserves to be paid to the eligible county at
least once per calendar year.
(II) Upon dissolution and liquidation of the nonprofit
corporation, all of its net assets are distributable to the board
of commissioners of the eligible county from which the corporation
leases the facility.
(ii) "Eligible county" has the same meaning as in section
307.695 of the Revised Code.
(53) Sales to or by a cable service provider, video service
provider, or radio or television broadcast station regulated by
the federal government of cable service or programming, video
service or programming, audio service or programming, or
electronically transferred digital audiovisual or audio work. As
used in division (B)(53) of this section, "cable service" and
"cable service provider" have the same meanings as in section
1332.01 of the Revised Code, and "video service," "video service
provider," and "video programming" have the same meanings as in
section 1332.21 of the Revised Code.
(C) For the purpose of the proper administration of this
chapter, and to prevent the evasion of the tax, it is presumed
that all sales made in this state are subject to the tax until the
contrary is established.
(D) The levy of this tax on retail sales of recreation and
sports club service shall not prevent a municipal corporation from
levying any tax on recreation and sports club dues or on any
income generated by recreation and sports club dues.
(E) The tax collected by the vendor from the consumer under
this chapter is not part of the price, but is a tax collection for
the benefit of the state, and of counties levying an additional
sales tax pursuant to section 5739.021 or 5739.026 of the Revised
Code and of transit authorities levying an additional sales tax
pursuant to section 5739.023 of the Revised Code. Except for the
discount authorized under section 5739.12 of the Revised Code and
the effects of any rounding pursuant to section 5703.055 of the
Revised Code, no person other than the state or such a county or
transit authority shall derive any benefit from the collection or
payment of the tax levied by this section or section 5739.021,
5739.023, or 5739.026 of the Revised Code.
Section 2. That existing sections 5501.44, 5501.70, 5501.71,
5501.73, 5501.78, 5531.11, 5531.12, 5531.13, 5531.14, 5531.15,
5531.16, and 5739.02 of the Revised Code are hereby repealed.
Section 3. Section 5739.02 of the Revised Code is presented
in this act as a composite of the section as amended by both Am.
Sub. H.B. 51 and Am. Sub. H.B. 59 of the 130th General Assembly.
The General Assembly, applying the principle stated in division
(B) of section 1.52 of the Revised Code that amendments are to be
harmonized if reasonably capable of simultaneous operation, finds
that the composite is the resulting version of the section in
effect prior to the effective date of the section as presented in
this act.
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