kigre inc. v town of hilton head island

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA

BEAUFORT DIVISION

KIGRE, INC., ) CIVIL ACTION NUMBER: 9:13-___________ ) Plaintiff, ) ) COMPLAINT ) For Declaratory Relief; v. ) Unjust Enrichment; Negligence; ) Denial of Due Process; TOWN OF HILTON HEAD ) Denial of Equal Protection; ISLAND, ) Conversion; Discrimination Defendant. ) ) ______________________________) JURY TRIAL DEMANDED The Plaintiff above named, complaining of the acts of the above-named Defendant, states

as follows:

PARTIES AND JURISDICTION

1. That the Plaintiff Kigre, Inc. (hereinafter sometimes referred to as “Kigre”) is a

company organized and existing under the laws of the State of Ohio. Its principal place of

business is in Beaufort County, in the State of South Carolina, and it is authorized to do business

in the State of South Carolina.

2. That the Defendant Town of Hilton Head Island (hereinafter sometimes referred to as

the “Town,”) is a municipal corporation organized and existing pursuant to the laws of the State

of South Carolina and is a political subdivision of the State of South Carolina. The Town of

Hilton Head Island is located within Beaufort County, South Carolina.

9:13-cv-01776-SB Date Filed 06/28/13 Entry Number 1 of 35

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3. That this Court has federal question jurisdiction pursuant to 28 U.S.C. Section 1331

because the main question raised herein (the Town’s ability to apply its Business License Fee to

the Plaintiff’s unapportioned gross income) directly arises under the United States Constitution,

Art. 1, Section 8, Clause 3, often referred to as the “Commerce Clause.”

4. That this court also has diversity jurisdiction pursuant to 28 U.S.C. Section 1332

because the parties are citizens of different states and the amount in controversy exceeds

$75,000, exclusive of interest and costs.

5. That venue for all causes of action stated herein lies in the District of South Carolina,

Beaufort Division, in that, pursuant to 28 U.S.C. Section 1391(b), the parties reside and do

business in said district, and a substantial part of the events giving rise to Plaintiff’s claims

occurred therein.

CONDITIONS PRECEDENT

6. That the Plaintiff has exhausted all administrative remedies and conditions precedent,

including timeliness, deferral and all other jurisdictional requirements necessary for the

maintenance of the foregoing action, all of which are more fully described below.

7. That on or about June 19, 2012, as a result of the Defendant’s intentional breach of its

own Municipal Ordinance and of the Defendant’s discriminatory and unconstitutional conduct,

all of which is more fully described below, the Plaintiff filed an “Application for Adjustment of

Assessment” with the Defendant Town.

8. That on or about May 4, 2013, the Defendant Town notified Plaintiff that it was

issuing a “Final Assessment” to Kigre for $318,520.35 in alleged “Business License Fees” and

penalties due, and advised Kigre that it had the right to appeal to the Town Council of the


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Defendant if, and only if, it paid the assessment in full, under protest, within five (5) days of the

date of the notice of Final Assessment, and filed a written Notice of Appeal with ten (10) days of

the payment under protest.

9. That on or about May 8, 2013, Kigre paid the “Final Assessment” of $318,520.35 in

full, under protest.

10. That on or about May 17, 2013, Kigre filed a written Notice of Appeal to the Town

Council with the Defendant Town.

11. That beginning on June 4, 2013 and continuing on June 11, 2013, a Hearing was

conducted before the Town Council of the Defendant Town, during which testimony was taken

and evidence submitted to the Town Council concerning the “Final Assessment.”

12. That on or about June 20, the Town delivered to Kigre, Inc. a written decision dated

June 18, 2013, which asserts that after a “recalculation,” the Town had determined that Kigre is

“liable to the Town of Hilton Head Island, South Carolina for past due business license fees and

penalties,” the amount of $85,113.58.

13. That on or about June 21, 2013, the Town tendered to Kigre, Inc. a check in the

amount of $233,413.93, but retained in the Town’s possession, despite demand and without just

or legal reason, the amount of $85,406.77.

14. That pursuant to the Municipal Code of the Town of Hilton Head Island, specifically

section 10-1-160, the Town Council decision of June 20, 2013 “shall be final unless appealed to

a court of competent jurisdiction with ten (10) days after service.”


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15. That Plaintiff has timely filed this Summons and Complaint in a Court of “competent

jurisdiction” within ten (10) days from receipt of service of the written decision of the Town

Council of the Defendant Town.

FACTS

16. That Plaintiff hereby realleges and repeats each and every allegation contained in

Paragraphs 1 through 15 hereinabove as fully as if set forth verbatim.

17. That the Town of Hilton Head Island enacted a Business License Ordinance in 1983,

known as Ordinance 10-1-10. The salient portions of the Ordinance relating directly to this

Complaint are:

Section 10-1-10. License Required. Every person engaged or intending to engage in any calling, business, occupation or profession listed in the rate classification index portion of this chapter, in whole or in part, within the limits of the town, is required to pay an annual license as hereinafter provided. Section 10-1-20. Definitions. (2) Classification: That division of businesses by major groups subject to the same license rate, as determined by a calculated index of ability to pay based on national averages, benefits, equalization of tax burden, relationship of services, or other basis deemed appropriate by the town council. (3) Gross income: The total revenue of a business, received or accrued, for one fiscal year collected or to be collected by reason of the conduct of business within the town, excepting therefrom income from business done wholly outside of the town on which a license tax is paid to some other municipality or a county and fully reported to the town. Gross income from interstate commerce shall be included in the gross income for every business subject to a business license fee. The gross income for business license purposes shall conform to the gross income reported to the Internal Revenue Service, the South Carolina Department of Revenue and Taxation, or the South Carolina Insurance Commission. Section 10-1-30. Purpose and duration.


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The business license levied by this chapter is for the purpose of providing such regulation as may be required by the businesses subject thereto and for the purpose of raising revenue for the general fund through a privilege fee…. Section 10-1-60. Deductions and exemptions. No deductions from gross income shall be made except from income from business done wholly outside of the town on which a license tax is paid to some other municipality or a county, or income which cannot be taxed pursuant to state law. The applicant shall have the burden to establish the right to a deduction by satisfactory records and proof….The license inspector shall determine the appropriate classification for each business. No person shall be exempt from this chapter by reason of the payment of any other tax, unless exempted by state law, and no person shall be relieved of the liability for the payment of any other tax by reason of the application of this chapter. Section 10-1-100. Inspections and audits. For the purposes of enforcing the provisions of this chapter the license inspector or other authorized agent of the town is empowered to enter upon the premises of any person subject to this chapter to make inspections, examine and audit books and records, and is shall be unlawful for any person to fail or refuse to make available the necessary books and records during normal business hours with twenty four (24) hours’ prior written notice. In the event an audit or inspection reveals that false information has been filed by the licensee, the costs of the audit shall be added to the correct license fee and late penalties in addition to other penalties provided herein. Each day of failure to pay the proper amount of license fee shall constitute a separate offense. The license inspector may make systematic inspections of all businesses with the town to ensure compliance with this chapter. Records of inspections and audits shall not be deemed public records, the inspector shall not release the reported gross income of any person by name without permission of the licensee, provided that statistics compiled by classifications may be made public.

Section 10-1-110. Assessments. When any person shall have failed to obtain a business license or to furnish the information required by this chapter or the license inspector, the license inspector shall proceed to examine the records of the business or other available records as may be appropriate and to conduct investigations and statistical surveys as he may deem appropriate to assess a license tax and penalties as provided herein. A notice of assessment shall be served by certified mail and an application for adjustment of the assessment may be made to the license inspector with fine (5) days after the notice is mailed or the assessment will


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become final. The license inspector shall establish by regulation the procedure for hearing an application for adjustment of assessment and issuing a notice of final assessment. A final assessment may be appealed to town council only by payment in full of the assessment under protest within five (5) days and filing of written notice of appeal within ten (10) days after payment pursuant to provisions of this chapter relating to appeals to town council.

Section 10-1-160. Appeals to town council. (a) Any person aggrieved by a final assessment or a denial of a business license by the license inspector may appeal the decision to town council by written request stating the reasons therefor filed with the town clerk within ten (10) days after the payment of the assessment under protest or notice of denial is received.

(b) An appeal or a hearing on revocation shall be held by town council with thirty (30) days after receipt of a request for appeal or service of a notice of suspension at a regular or special meeting of which the applicant or licensee has been given written notice. At the hearing all parties shall have the right to be represented by counsel, to present testimony and evidence and to cross examine witnesses. The proceedings shall be recorded and transcribed at the expense of the party so requesting. The rules of evidence and procedure prescribed by the town council shall govern the hearing. Town council shall by majority vote of members present render a written decision based on findings of fact and the application of the standards herein which shall be served upon all parties or their representatives and shall be final unless appealed to a court of competent jurisdiction with ten (10) days after service.

Section 10-1-190. Classification rates, schedules. The license fee for each class of business shall be computed in accordance with the following rates and with the Standard Industrial Classification (SIC) Manual 1987, except in cases of conflict between the provisions of the SIC and Town Code, the Town Code provisions shall prevail.

Section 10-1-200 Local Industry License. Any person who desires to exclusively engage in the business of offering for public sale at designated locations, as determined by the town manager, farm and garden products or flowers grown of the property of such person, or flower arrangements, arts or crafts produced in the home of such person, or seafood caught by such person, shall secure from the town an annual business license, but shall be exempt from the payment of a business license fee.


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18. That from the time Kigre opened its manufacturing operation on Hilton Head in 1986

until 2004, Kigre had annually submitted a business license fee application to the Town

comporting with the time requirements of the ordinance, and paid the minimum fee due, which

was $62.50 annually.

19. That Kigre paid the minimum $62.50 annually because Kigre took the position that

the unapportioned gross income of Kigre, which was 99.5 percent made up of interstate and

international sales, was not subject to a “sales tax” being imposed by the Town. This position is

based upon Kigre’s good faith belief that the Dormant Commerce Clause allows a municipality

to apply such a Business License Fee to Kigre’s gross income only if the tax or fee:

a. Is applied to an activity with a substantial nexus with the taxing jurisdiction;

b. Is fairly apportioned;

c. Does not discriminate against interstate commerce, and,

d. Is fairly related to the services provided by the state.

20. That from at least 2004 forward until today, the Town has known and understood that

Kigre’s position regarding the Business License Fee is that the Town may not apply its Business

License Fee tax to Kigre’s unapportioned gross income, thereby taxing gross income generated

in interstate and international sales.

21. That on or about April 3, 2006, the Town filed suit against Kigre in Circuit Court in

Beaufort County, seeking damages for $43,645.81 it alleged was due the Town under the

Business License Fee ordinance for the years 2001, 2002, 2003, 2004 and 2005.

22. That the aforementioned case, assigned Civil Action No. 06-CP-07-796, was tried by

Master In Equity and Special Circuit Judge Marvin H. Dukes, III, in December 2010.


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23. That the Town made no effort to amend or supplement its claims for any later years

either before or at trial of the case.

24. That Judge Dukes ruled that the Town “waived the right to collect on the $41,645.81”

and the Town having failed to appeal from that finding against it, the holding of waiver as to any

claims for business license fees allegedly owed for 2001, 2002, 2003, 2004 or 2005 is the law of

the case.

25. That Kigre appealed Judge Dukes’ other rulings in Case No. 06-CP-07-796, including

his ruling that:

“[T]he Town does not need to provide a method for calculating the portion of the Town’s business license fee which is allocated/derived from interstate commerce. The validity of the business license fee does not depend upon income being characterized as derived from interstate commerce or any other source. The business license fee applies equally to all income which is connected with the business conducted within the Town.”

That appeal, assigned Case No. 2012-213239, is currently pending before the South Carolina

Court of Appeals.

26. That at no time between the filing of Case No. 06-CP-07-796 on April 3, 2006 until

June 15, 2012, did the Town take any action whatsoever to attempt to collect monies allegedly

due on Kigre’s business license fees from 2006 through 2012.

27. That at no time prior to June 15, 2012, did the Town nor the designated “License

Inspector”, seek to perform an “audit” of Kigre under Section 10-1-100 for the purpose of

enforcing the provisions of the Municipal Code.


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28. That at no time prior to June 15, 2012, did the Town nor the designated License

Inspector, notify Kigre of the Town’s intention to perform an “audit” of Kigre under Section 10-

1-100 for the purpose of enforcing the provisions of the Municipal Code.

29. That at no time prior to June 15, 2012, did Kigre nor anyone acting on Kigre’s behalf,

refuse, decline or otherwise deny the Town its right to perform a Section 10-1-100 “audit”

relating to Kigre’s 2006, 2007, 2008, 2009, 2010, 2011, or 2012 financial records.

30. That at no time prior to June 15, 2012, did Kigre nor anyone acting on Kigre’s behalf,

fail to furnish any legitimately requested financial information required by either the Municipal

Code or the designated License Inspector, regarding Kigre’s 2006, 2007, 2008, 2009, 2010,

2011, or 2012 financial records. The Town simply declined to request the financial information

under the Municipal Code provisions allowing for the review.

31. That on information and belief, the Town, acting through currently unknown, non-

elected agents, employees and/or third party advisors, for discriminatory and illegal reasons,

intentionally chose not to perform the available Section 10-1-100 “audit” prior to June 15, 2012

and instead undertook a secretive and baseless course of action with the sole purpose of

concocting a grossly inflated and preposterous “estimate” of Kigre’s gross income for the years

2007, 2008, 2009, 2010, 2011 and 2012.

32. That on information and belief, Kigre alleges that the Town’s actions in intentionally

choosing to not “audit” Kigre’s financial records as allowed by the Municipal Code, but instead

to undertake a secretive and baseless course of action to “estimate” a grossly inflated and

preposterous estimate of Kigre’s gross income for the years 2007, 2008, 2009, 2010, 2011 and

2012, was done for the illegal and discriminatory purpose of injuring Kigre’s business reputation


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and forcing Kigre to abandon its good-faith claims of unconstitutionality of the Business License

Fee Ordinance due to the fact Kigre would have to pay more than $318,000 to the Town prior to

being able to appeal the baseless assessment.

33. That on information and belief, Kigre alleges that the Town, acting through “license

inspector” Susan Simmons and other currently unknown employees, agents and/or third party

advisors, undertook the aforementioned course of conduct in bad faith and with the sole purpose

of injuring Kigre’s business reputation and extracting large sums of money from Kigre under the

guise of “past due” business license fees, all the while knowing that Kigre was most likely

generating less than a quarter of the “estimate” that the secretive and baseless “research” had

allegedly determined.

34. That on information and belief, Kigre alleges that the Town, prior to June 15, 2012,

did little, if any, bona fide research, analysis or statistical surveys in any type of good faith effort

to determine a realistic “estimate” of Kigre’s gross income for 2007 through 2012.

35. That prior to June 15, 2012, neither the Town nor anyone working for or with the

Town, advised Kigre of its secretive and baseless process of allegedly conducting an “industry

estimate” of Kigre’s gross income from 2007 through 2012, did not seek Kigre’s input, nor

provide Kigre with an opportunity to respond to the alleged “industry estimate” review process.

36. That on or about September 6, 2005, in connection with the Town’s earlier efforts to

collect additional business license fees from Kigre for 2002, 2003, 2004 and 2005, the Town

properly retained a CPA firm to conduct a Section 10-1-100 “audit” of Kigre’s financial records

relating to Kigre’s Business License Fee applications for those years. From that “audit,” which

Kigre willingly participated in, the Town knew, as of September 6, 2005, Kigre’s normal average


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annual gross income, including interstate sales. (The results of the September 6, 2005 “audit” are

confidential, but will be submitted to the Court and jury at trial.)

37. That on information and belief, the Town knew of no facts, reasons, statistics or

industry information in 2012 that would indicate in good faith that Kigre’s annual gross

income—including its interstate sales—would have differed greatly from the 2002-2005 audit

produced numbers.

38. That on or about June 15, 2012, the Town delivered to Kigre a letter stating that the

Town was “hereby exercising its right, under Town Municipal Code section 10-1-110, to

estimate the income for the amount of unpaid business license fees for 2007, 2008, 2009, 2010,

2011 and 2012 and assess fees and penalties based on those estimates.” The letter then declared

that the Town was estimating Kigre’s gross income for those years at TWENTY MILLION

($20,000,000) DOLLARS per annum, same allegedly being based upon an “industry estimate,”

and declared that Kigre thus owed $318,520.35 in business license fees and penalties for the

years 2007-2012. The letter further stated that Kigre could “request an audit” in which Kigre

would “be required to provide tax returns for years 2006-2011.”

39. That on June 19, 2012, Kigre’s attorney delivered to the Town a letter in response to

the 20 million dollar annual estimated gross income letter of June 15, 2012, which advised the

Town as follows:

a. Under the South Carolina Code, the applicable Statute of Limitations in this action is three years. Thus, the Town may only seek recovery of any monies allegedly due and owing by Kigre, Inc. to the Town from June 15, 2009 forward. I believe the records will show that within that time period, Kigre filed and the Town accepted, Kigre’s Business License Renewal Forms and proffered checks in 2010, 2011 and 2012. Those years will be the extent of any review the Town can legally initiate under the law.


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b. Kigre, Inc. has complied with requirements of the Municipal Code of the Town of Hilton Head Island, SC, in all respects regarding the Business License Fee.

c. The Business License Fee Ordinance, found at Section 10-1-10 et.seq. of the Municipal Code, is in form and enforcement, in violation of both the Constitution of the State of South Carolina and the Constitution of the United States of America in that it attempts to levy a tax on the out-of-state sales of a business without a proper apportionment.

d. The Town of Hilton Head Island arbitrarily and capriciously enforces the provisions of the Business License Fee Ordinance, in a discriminatory manner.

e. The Town of Hilton Head Island has failed and refuses to follow the requirements of its own ordinances.

f. The Town of Hilton Head Island is intentionally, without valid reason, harassing and damaging Kigre, Inc.

g. The Town of Hilton Head Island does not enforce the terms of the Business License Fee Ordinance uniformly and fairly.

h. For each of the past three years, Kigre, Inc. has submitted an annual Business License Renewal Form and payment. The Town has accepted same and issued a Business License. The Town has waived any claims to challenge the Kigre renewal forms.

i. If the Town desired to properly question or review the Business License Renewal Forms, there is a specific methodology set forth in the Municipal Code, which may be summarized as follows: Under Section 10-1-100, the Town purportedly has the authority to enter upon the premises of a business upon proper notice, to “make inspections, (and) examine and audit books and records….” Once the designated official has performed his or her audit or inspection, per Section 10-1-110, a “notice of assessment” may be formulated, and then an appropriate “application for adjustment of the assessment” may be made to the license inspector within five (5) days of the mailing of the “notice of assessment.”

j. There is absolutely no basis in the Municipal Code or under our State law, for the Town to create an “assessment” based upon an “industry estimate” as you state on page 1 of your June 15, 2012 letter.


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k. Kigre, Inc. is not obliged to “request an audit” and is not obliged to provide tax returns for any period of time, under the Municipal Code. The Town has certain specific “rights” under Section 10-1-100, and that does not include demanding that Kigre provide you with copies of its tax returns. If the Town desires to exercise its rights to inspect, examine and “audit,” then it must do so within the strict statutory framework set forth in the Municipal Code.

l. Unless and until such time as the Town performs an “inspection and audit” upon proper notice and then, based on that “inspection and audit,” formulates a good faith, realistic “notice of assessment,” and then hears Kigre’s application for adjustment of assessment, and then issues a final notice of assessment, which may then be appealed to Town Council, there is NO established “correct license fee” upon which the Town may charge any late penalty. Thus, your claim for $188,952.75 in penalties is preposterous. If and when the Town elects to follow its own Code properly and a final “assessment” is properly formulated in good faith, then the Town MAY be in a position to supposedly seek “late penalties” if any of the assessment remains unpaid after any final appeal.

By this letter, Kigre, Inc. specifically and directly advises the Town that Kigre, Inc. contends it has paid all business license fees that can and should be levied against it for its business sales in the Town’s jurisdiction. Kigre, Inc. believes the Town’s actions shown in your letter of June 15, 2012 amount to bad faith, and are intended to harass and improperly cajole Kigre, Inc. in to paying more than it legally owes.

40. That at some date within a week after the June 19, 2012 letter referenced in paragraph

39, the Town sent Kigre an undated letter advising that a “Hearing on Application for

Adjustment of Assessment” would be held on July 31, 2012 for Kigre to “present your data,

information, and/or arguments for an adjustment of the assessment.” Kigre was advised in that

letter as follows:

Following review of the data, information, and /or arguments provided at this hearing, the License Inspector will issue a decision and send notification to the attending parties within ten (10) business days unless you are otherwise notified. This decision will constitute the requisite final assessment. (Emphasis added).


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41. That despite demand, the Town, in bad faith, declined to provide Kigre with a copy of

the Town’s supposed “regulation” applying to the hearing procedure prior to the Hearing on July

31, 2012.

42. That Kigre attended the Hearing on July 31, 2012 by officer of the corporation and

legal counsel. At the hearing, Kigre advised the Town that because the Town had failed to

comply with its Municipal Code in computing the “assessment” set forth by letter of June 15,

2012, there was no legal basis to move forward with the hearing at all. Kigre further advised the

Town in the Hearing that it was both unfair and prejudicial for the Town to ignore the “audit”

provisions of the Municipal Code and then demand that Kigre defend itself in a hearing by

producing confidential tax returns for the Town staff to take possession of, copy and disseminate

at its will.

43. That by letter hand delivered to Ms. Simmons within hours of the July 31, 2012

Hearing, Kigre reiterated that an on-site “audit” was the only “legitimate basis for the Town to

proceed to issue an assessment” and demanded the Town withdraw the June 15, 2012 and the 20

million dollar per annum estimated assessment made therein. Kigre further reiterated therein to

the Town: “If the Town wishes to proceed pursuant to its own Municipal Code, Kigre will work

with the Town to provide the required access to information as is set forth in my letter of June

19, 2012.”

44. That at the July 31, 2012 Hearing, Kigre was advised, for the first time, that the Town

had it classified under the outdated Standard Industrial Classification (SIC) system used by the

Town pursuant to Code Section 10-1-190, under SIC Class 3845, entitled “Electromedical and

Electrotherapeutic Apparatus.”


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45. That SIC class 3845 on July 31, 2012, included businesses primarily engaged in

manufacturing electromedical and electrotherapeutic apparatus, such as cardiographs,

pacemakers, and ultrasonic scanning devices. Kigre does not manufacture or sell electromedical

and/or electrotherapeutic devices.

46. That on or about January 20, 2012, by its 2012 Business License Renewal Form,

Kigre had informed the Town that the Town had mistakenly listed Kigre as a manufacturer of

“Optical/Watches/Clocks/Measured T.”

47. That on or about January 20, 2012, by its 2012 Business License Renewal Form,

Kigre had informed the Town that Kigre was a “Laser & Laser Components Mfg.”

48. That from at least January 20, 2012, until July 31, 2012, the Town had actual

knowledge that Kigre was wrongfully classified under the Town’s outdated SIC classification

system.

49. That on July 31, 2012, both at the Hearing referenced above and by letter of even

date, Kigre demanded that the Town remove Kigre from the SIC classification 3845

“Electromedical and Electrotherapeutic Apparatus” and place them into a proper classification

under the SIC, same being Section 3999, entitled “Miscellaneous Manufacturing Industries.”

50. That under the Town’s Municipal Code and the SIC in effect between June 15, 2012

and July 31, 2012, the placement of Kigre in the wrong SIC classification 3845, instead of the

rightfully demanded inclusion in Class 3999, resulted in the Town’s being able to charge Kigre a

higher amount under the Business License Fee computation.


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51. That despite demand, as of the filing of this lawsuit, the Town continues to

wrongfully charge Kigre a higher amount than it should be paying under the Business License

Fee Ordinance computation by wrongfully declaring it a Class 3845 business, instead of a Class

3999 business under the SIC.

52. That the Town’s refusal to properly classify Kigre as a Class 3999 business has been

wrongful, discriminatory and without legitimate basis.

53. That following the July 31, 2012 Hearing, in direct contradiction to the Town’s

earlier Notice of Hearing on Application For Adjustment of Assessment, the Town’s Business

License Inspector failed to issue a decision and send notification to the attending parties within

ten (10) business days, nor did the License Inspector “otherwise notify” Kigre as to the Town’s

intentions within ten (10) days.

54. That at no time in the nine (9) months between July 31, 2012 and May 3, 2013, did

the Town or the License Director, advise Kigre of the Town’s desire or intention to perform a

Code Section 10-1-100 “audit” to make a Code-authorized onsite inspection and examination of

Kigre’s financial records.

55. That more than nine months later, on May 3, 2013, the Town Business License

Director by letter advised Kigre that the Town was issuing its “Notice of Final Assessment” for

$318,520.35.The Town reiterated that it was relying upon an estimate of 20 million dollars per

annum, which was allegedly generated “based on multiple sources of information for the laser

industry, including analysis of companies operating under similar circumstances to Kigre.”


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56. That on information and belief, Kigre alleges that no such bona fide analysis of

companies operating under similar circumstances to Kigre was ever made, and that the

representations set forth in the May 3, 2013 letter were untruthful and made in bad-faith.

57. That receipt of the May 3, 2013 Town letter triggered a five (5) day time limit for

Kigre to pay the entire $318,520.35 to the Town under protest, in order to preserve its only

administrative appeal right, that to the Town Council.

58. That Kigre timely paid the $318,520.35 under protest on May 8, 2013.

59. That Kigre timely filed its Notice of Appeal to the Town Council on May 17, 2013,

and therein set forth in detail the specifics of Kigre’s appeal. A true and correct copy of Kigre’s

detailed Appeal to Town Council is attached hereto as Exhibit A.

60. That on May 24, 2013 (the Friday before Memorial Day), more than two weeks after

Kigre paid the $318,520.35 to purchase its right to appeal to Town Council, Kigre received a

letter from License Inspector Susan Simmons advising Kigre that the Town was scheduling an

“audit” of Kigre’s 2007, 2008, 2009, 2010, 2011, 2012 and 2013 financials, said “audit” to occur

on Tuesday, May 28, 2013 (the day after Memorial Day).

61. That late on the afternoon of May 24, 2013, Kigre responded to the demand for an

“audit,” advising the Town that Kigre believed the Town had waived its right to an “audit” of the

2007-2012 financial records under Code Section 10-1-100 by proceeding forward with the

Town’s May 3, 2013 establishing the “Final Assessment,” which had forced Kigre to pay to the

Town $318,520.35.


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62. That on June 4, 2013 and continuing on June 11, 2013, an Appeal Hearing was

conducted by the Town Council of the Defendant Town, during which testimony was taken and

evidence submitted to the Town Council concerning the “Final Assessment.”

63. That during the Appeal Hearing, Kigre made available for Town Council inspection,

copies of its confidential Federal Income Tax Returns from 2009, 2010, 2011 and 2012, which

were the only years within the applicable statute of limitations’ three year review period.

64. That during the Appeal Hearing, Kigre offered to make available to the Town Council

financial records that would show the amount of its in-state and out-of-state sales from each year,

from which the Town Council could have properly apportioned the gross income of Kigre

consistent with controlling case law. The Town Council declined the offer to provide the detailed

financial records because the Town of Hilton Head Island’s official policy is that the Town has

no obligation to apportion gross income to separate in-state versus out-of-state sales when

considering its Business License Fee computation.

65. That on or about June 18, 2013, the Town sent a letter to Kigre (received on June 20,

2013), “recalculating” Kigre’s Business License Fee assessment, and advised Kigre that it

allegedly owed $21,853.80 in Business License Fees on its gross income for the years 2007-2012

and penalties and fees of an additional $52,298.86, for a total “assessment” allegedly due and

owing of $85,113.58. These “recalculated” numbers included fees allegedly due from the years

2007, 2008, 2009, and 2010, in addition to 2011 and 2012. These “recalculated” numbers also

include gross income that was undisputedly generated from sales in interstate commerce. A true

and correct copy of the Town Council letter of June 18, 2013 is attached at Exhibit B. (The


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financial computations were attached to the letter, but are confidential and are not at this time,

being attached to the Complaint.)

66. The Town of Hilton Head Island refunded to Kigre, Inc. on June 21, 2013, the

amount of $233,413.93, but wrongfully retained the amount of $ 85,113.58. The action of

retaining said $85,113.58, despite the demand for refund, constitutes an action of wrongful

conversion of the funds.

FOR A FIRST CAUSE OF ACTION (DECLARATORY RELIEF)

67. The allegations contained in Paragraphs 1 through 66 are realleged as fully as if

repeated verbatim herein.

68. That the Town seeks to impose liability on the Plaintiff for a business tax which the

Defendant euphemistically declares to be a “business license fee,” but is a de facto tax on gross

income of the Plaintiff.

69. That the Defendant additionally seeks to assess certain penalties, costs, charges, fees

and other punitive measures for failure to pay the business tax which it levies on businesses

located within the Town of Hilton Head Island that fail to meet the Plaintiff’s requirements as set

forth in Section 10-1-10, et seq. of the Municipal Code of the Town of Hilton Head Island.

70. That since the Plaintiff acquired its first business license from the Town, the Plaintiff

has consistently renewed its business license with the Town for each subsequent year declaring

income derived from business activities within the jurisdictional limits of the Town of Hilton

Head Island for payment.


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71. That at all times set forth herein the Defendant knew that Plaintiff’s business was

predominantly devoted to interstate commerce.

72. That at all times the Plaintiff was entitled to the protections afforded to it under the

Constitution of the United States, specifically U. S. Constitution Article 1, Section 8, Clause 3.

73. That in conducting its business activities, the Plaintiff does not need, nor require, nor

does it have provided to it, any fairly related services by the Defendant. That further, the

comprehensive scheme known as the “business license fee,” enacted by Defendant, was known

by this Defendant to be fatally defective and unconstitutional on its face.

74. That the recommendations and model ordinances provided by the Municipal

Association of South Carolina instructed the Defendant that it must and should honor the

obligations imposed upon it by the Commerce Clause in the United States Constitution.

75. That, upon information and belief, the Defendant should have known that its actions

with respect to this Plaintiff, and others similarly situated, were in violation of the Commerce

Clause.

76. That upon information and belief, in order to circumvent the holdings of earlier cases

relating to the Commerce Clause, the Defendant created a scheme of laws for the business

license tax designed to frustrate, punish, intimidate, discourage, and extract payments from

businesses, including the Plaintiff and those like it, which trade in interstate commerce outside

the corporate limits of the Plaintiff.

77. That Plaintiff is engaged in manufacturing, assembling and sales of certain

specialized laser devises.


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78. That because of the specialized nature of its business, the demand within the

corporate limits of Hilton Head Island is almost non-existent. Plaintiff’s business is conducted

almost wholly outside of the Town’s municipal jurisdictional limits; that is to say outside the

boundaries of the Town of Hilton Head Island.

79. That under the Municipal Code of the Town of Hilton Head Island, specifically

Section 10-1-10, et seq., the Defendant fails to properly and fairly apportion the receipts of this

business engaged inside and outside of the municipal limits of the Town of Hilton Head Island.

80. That further upon information and belief, the Defendant is a member of and supports

its officials who act as or who have rights as officers of the Municipal Association of South

Carolina.

81. That upon information and belief, since on or about October of 2000, the Defendant

knew or should have known that its ordinance related to business license taxes was defective in

that it failed to meet Constitutional standards and, specifically, was violative of the Commerce

Clause as set forth in the United States Constitution Article 1, Section 8, Clause 3.

82. Kigre brings this action pursuant to 28 U.S.C. §2201 and Federal Rule of Civil

Procedure 57, for a declaration that the business license tax as applied to this Plaintiff and other

such similarly situated businesses that deal in interstate commerce and conduct business in

interstate commerce, is violative of the United States Constitution and specifically Article 1,

Section 8, Clause 3. Plaintiff also seeks a declaration that the allowing of certain home

businesses under Section 10-1-200 of the Municipal Code of the Town of Hilton Head Island

conflicts with Section 10-1-10 and that additionally Section 10-1-200 of the Municipal Code of

the Town of Hilton Head Island related to local industries, is discriminatory and favors certain


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businesses over others because of “local industry licenses,” which have no rational basis and

which denies equal protection to this Defendant and others similarly situated and, as such,

Section 10-1-10, et seq. should be declared unconstitutional on the basis of the failure of the

Defendant to apportion fairly that portion of income derived from interstate commerce versus

that not derived from interstate commerce and on the basis that allowing a free local industry

license, favors certain businesses over those engaged in interstate commerce.

83. That further this Plaintiff seeks a declaration that the business tax as applied by the

Defendant to this Plaintiff and others similarly situated, is unconstitutional in that the activity of

this Plaintiff does not have a substantial nexus with the Town of Hilton Head Island. Kigre

further alleges that the tax is not fairly apportioned and that the tax does discriminate against

interstate commerce and favors other businesses and that the tax is not fairly related to the

services provided by the Town of Hilton Head Island to this Plaintiff and others similarly

situated.

84. That further the business license tax ordinance as applied does not provide for

attorney fees to a business which prevails against an unconstitutional ordinance (while allowing

attorneys fees to the Town) and thus denies equal protection to this Plaintiff.

85. That further, the business license tax as applied by the Defendant to this Plaintiff and

others similarly situated, is an attempt by the Defendant to place a direct tax on the privilege of

engaging in interstate commerce.

86. That further, the Plaintiff seeks such other declarations as are necessary and pertain to

the business license tax ordinance of the Defendant to determine the constitutionality as applied


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to the Plaintiff and others similarly situated and for such other and further declarations as this

honorable Court deems just and proper.

87. That the Defendant seeks a further declaration that the efforts by the Town beginning

on June 15, 2012, the failure to perform a timely audit called for under the Municipal Code, and

the imposition of attorney fees and other penalties, are punitive and as such are unconstitutional

as applied by this Defendant to this Plaintiff and others similarly situated. That further upon such

declaration, that the Plaintiff be allowed to seek such damages as are appropriate for violation of

the Constitutional protections afforded to this Plaintiff and others similarly situated.

88. That further this Plaintiff seeks a declaration that the applicable Statute of

Limitations, S.C. Code Annot. Section §15-3-530, prohibits recovery by the Town of any alleged

monies or penalties owed pursuant to the “Business License Fee” ordinance that accrued prior to

three years from the anticipated Answer and Counterclaim to be filed by the Town, thereby

barring any action concerning Business License Fees that allegedly accrued prior to

approximately July 20, 2010. Thus, the only years reviewable under the applicable Statute of

Limitations will be 2011, 2012 and 2013.

FOR A SECOND COUNTERCLAIM

(UNJUST ENTICHMENT)

89. The allegations contained in Paragraphs 1 through 88 are realleged as fully as if

repeated verbatim herein.

90. That Plaintiff Kigre alleges that the Defendant Town has demanded and collected a

Business License Fee from Kigre, Inc. every year from 2002 forward. Kigre alleges such fee was

a requirement to operate its business within the Town’s jurisdiction.


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91. That Plaintiff Kigre alleges the Defendant Town failed to abide by the express terms of

its Business License Fee ordinance (Section 10-1-10 et. seq.) in that the Town levied and

collected business license fees and/or business license taxes in disregard of the appropriate rate

classification requirements and system set forth in the language of the subject Business License

Fee ordinance.

92. That the subject ordinance specifically requires that industry-wide profitability rates as

indexed by the United States government, be applied for classification and determination of the

proper rate class for each business, and corresponding amounts of business license fees for each

class. Kigre alleges, on information and belief, that the Town failed to follow the classification

standards established by its own ordinance, resulting in the Defendant randomly, erroneously,

and imperfectly implementing the ordinance so as to cause the business license fees to be

arbitrary, random, capricious, vague, speculative, illegal, and invalid.

93. That Kigre further alleges the Defendant failed to place Kigre in a classification that

corresponds to the appropriate United States government profitability statistics or to establish

any basis for delineation of profitability (ability to pay) for classifying and indexing such

businesses into the various Rate Classes.

94. That Kigre further alleges that the Defendant refused, after demand and without just

cause or reason, to place Kigre in the appropriate classification, and that the refusal was for the

sole purpose of wrongfully increasing the amount of Business License Fee that was supposedly

due from Kigre.

95. That the Town's business license fee ordinance uses and is required to be based upon

a calculated index of “ability to pay” based on national averages by types of business as


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categorized in the Standard Industrial Classification (SIC) Manual, which is now published as

the North American Industry Classification System (NAISC).

96. That Article 1, Section 8, Clause 1 of the United States Constitution provides that:

“The Congress shall have power to lay and collect taxes, duties, Imposts, and Excises, to pay the

Debts and provide for the Common Defense and General Welfare of the United States; but all

Duties, and Imposts, and Excises shall be uniform throughout the United States”.

97. That the Fourteenth Amendment of the United States Constitution provides: “No

state shall make or enforce any law which shall abridge the privileges or immunities of a citizen

of the United States nor shall any state deprive any person of life, liberty, or property without

due process of law; nor deny to any person within its jurisdiction the equal protection of laws”.

98. That the South Carolina Constitution provides that: “The privileges and immunities

of citizens of this State and of the United States under this Constitution shall not be abridged nor

shall any person be deprived of life, liberty, or property without due process of law, nor shall any

person be denied the equal protection of laws”.

99. That the power and authority available to Defendant Town of Hilton Head Island to

impose a business license fee begins with the South Carolina Constitution, Article X., Section 5,

which provides that: ”No tax, subsidy or charge shall be established, fixed, laid or levied under

any pretext whatsoever, without the consent of the people or their representatives lawfully

assembled. Any tax which shall be levied shall distinctly state the public purpose to which the

proceeds of the tax shall be applied.”

100. That the foregoing constitutional provision applies to all acts that levy taxes or

create a new tax.


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101. That the South Carolina Constitution Article X., Section 6 states that: “The General

Assembly may vest the power of assessing and collecting taxes in all the political subdivisions of

the state.”

102. That the South Carolina Legislature enacted S. C. Code Annotated Section 5-7-

30(1976 and 2005 Supp.) to identify the specific powers conferred upon municipalities:

“Each municipality of the State, in addition to the powers conferred to a specific form of government, may enact Regulations, Resolutions, and Ordinances, not inconsistent with the Constitution and general laws of this State,… including the authority to levy and collect taxes on real and personal property and as otherwise authorized in this section, make assessments, and establish uniform service charges relating to them;... levy a business license tax on gross income, but a wholesaler delivering goods to retailers in a municipality is not subject to the business license tax unless it maintains within the corporate limits of the municipality a warehouse or mercantile establishment for the distribution of wholesale goods; and a business engaging in making loans secured by real estate is not subject to the business license tax unless it has premises located within the corporate limits of the municipality and no entity which is exempt from the license tax under another law nor a subsidiary or affiliate of an exempt entity is subject to the business license tax...”

103. That to be valid, an ordinance enacted by a governmental entity must be consistent

with the Constitution and general laws of South Carolina.

104. That a business license fee is an excise tax on the owner for the privilege of doing

business, and therefore is based upon classification and gross income, not upon the level of

governmental services provided.

105. That the subject ordinance purports to apply the rates charged for business license

fees based on the business's ability to pay using SIC/NAICS classifications as a standard by

which to apply a graduated rate of fees, increasing as profitability increases.


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106. That the SIC/NAICS publications group various industry types into major groups.

IRS statistics on nationwide business income are the basis used to calculate a ratio or index of

ability to make a profit for each SIC/NAICS group included in the subject business license fee

ordinance:

The indexes of ability to make a profit, which indicate the ability to pay a license tax, were arranged in ascending order and plotted from major groups to be taxed. Businesses were placed in Rate classifications by dividing the range of indexes into even increments, disregarding irregularities in the plotted curve at the high end. This procedure resulted in those major groups having the same range of ability to pay being taxed at the same rate.

Municipal Association of South Carolina, Business License Rate Survey Report and

Sample License Ordinance, paragraph 3, page 48 (1995) (MASC Handbook).

107. That pursuant to the express language in the subject ordinance, the Town of Hilton

Head is required to set the rate for each classification with “a uniform variation between classes,

since the variation in the indexes is uniform.” Except for the last rate class, all of the rate classes

were purported to have been originally established employing the system.

108. That the actual rates applied to business license fees are determined by the Rate

Class into which the governing body places a particular type of business or industry. The Rate

Classes are arranged so that Class I is the lowest rate, ascending in amount in increases to the

highest Rate Class.

109. That over time as the IRS collects additional information concerning profitability,

new SIC/NAICS statistics are issued. The Municipal Association of South Carolina handbook

advises municipalities that when the latest IRS statistics are available, they should re-calculate

Rate Classes based on new SIC/NAICS profitability information: “Once the system is adopted, it


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is imperative to maintain the rate classifications to assure validity of the ordinance. The arbitrary

shifting of a business class to a different rate class destroys the basis for defense of the system”.

110. That Internal Revenue Service statistics on nationwide income published

periodically were supposed to be used to find the profit ratios for each SIC/NAICS group

included in the subject ordinance. The ratios were supposed to have been arranged and plotted in

ascending order and major groups were placed in rate classifications by division into equal

increments of ratio, disregarding the upper ratios which made the curve irregular. This procedure

would result in those major groups having the same range of ability to pay being taxed at the

same rate.

111. That the theory behind the classification system is to utilize nationwide statistics on

business income to determine profit making ability in order that businesses with similar paying

potentials would be placed in the same rate class unless there is some additional overriding state

or local consideration.

112. That the Defendant Town of Hilton Head has failed to use or implement the

calculations and classifications that would result from the implementation of the methodology

required by its business license ordinance.

113. That the Defendant Town of Hilton Head has failed to provide any basis, method or

procedure for delineation and indexing based on profitability between the rate classes.

114. That the Defendant Town of Hilton Head randomly, speculatively, vaguely,

arbitrarily, capriciously, and illegally put businesses in rate classes and the Defendant is not

recalculating rate classes based on new SIC/NAICS profitability information. As a result,

businesses are arbitrarily and randomly shifted into rate class categories that do not accurately


29

reflect their profitability and ability to pay. On information and belief, Defendant Kigre is such a

business that has been arbitrarily and randomly shifted into a rate class category that does not

accurately reflect its “ability to pay” and profitability.

115. That the Defendant’s failure to accurately classify the rate class or to delineate the

break point between classes appropriate for Kigre, proximately and directly caused harm to

Kigre by causing such affected taxpayer to pay business license fees that are not in accordance

with the dictates of the express language of the ordinance.

116. That Plaintiff Kigre conferred benefits to Defendant by and through the payment of

illegal business license fees.

117. That Defendant Town realized and enjoyed the benefits conferred by Plaintiff Kigre.

118. That under the subject business license fee ordinance, Defendant Town is illegally

and improperly collecting business license fees from Kigre.

119. That Plaintiff Kigre has, since at least the filing of its Answer and Counterclaim on

August 6, 2006, in a case originally brought in Circuit Court by the Town, has protested the

payment of a business license fee. All fees paid since that date has been paid under protest.

120. That it would be inequitable for Defendant Town of Hilton Head Island to retain

such illegally obtained benefits without disgorging those funds back to Plaintiff Kigre.

121. That Defendant Town has not returned and continues to hold the illegal, arbitrarily

and improperly collected business license fees collected from Kigre and as such, the Town of

Hilton Head Island has been unjustly enriched.


30

122. That as a direct and proximate result of the Defendant Town’s illegal, arbitrary and

improper imposition and collection of the business license fee, Kigre has been damaged and is

entitled to disgorgement of those monies in an amount to be more specifically proven at trial of

this case.

FOR THIRD CAUSE OF ACTION (NEGLIGENCE)

123. The previous paragraphs are restated and realleged as fully as if repeated verbatim.

124. That the express language of the subject business license fee ordinance imposes a

requirement on the Defendant Town to accurately classify and levy the business license fees

using the appropriate rate class as determined by the SIC/NAICS in order to correlate the amount

of business license fee levied with the taxpayer’s (Kigre’s) ability to pay as determined from

national statistics on profitability.

125. That Defendant Town breached the terms of its ordinance by negligently failing to

accurately classify and levy business license fees using the appropriate Rate Class as determined

under the SIC/NAICS’ national averages. Instead, Defendant Town levied and imposed a

business license fee on Kigre in an amount that did not correspond with Kigre’s profitability rate

as determined by the SIC/NAICS’ national averages and was arbitrary and without legal basis.

126. That as a direct and proximate result of the Town’s failure to comply with its own

requirements concerning the business license fee ordinance, Kigre has sustained damages in an

amount to be determined at the trial of this case.

FOR A FOURTH CAUSE OF ACTION

(DENIAL OF DUE PROCESS)


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127. The previous paragraphs are reiterated and realleged as fully as if repeated

verbatim herein.

128. That the method provided by the Defendant Town’s business license fee scheme

imposes a fee which does not bear a reasonable relationship to the taxpayer’s profitability within

the Town of Hilton Head’s jurisdiction.

129. That the Defendant’s business fee license ordinance is unconstitutionally vague in

failing to provide any means, method or procedure to determine indexing or the delineation

between Rate Classes based on ability to pay.

130. That Defendant Town is denying Kigre due process of law by depriving Kigre of its

“property” interest in the money used to pay the Defendant’s business license fee in that the

business license fee collected from Kigre, as it was placed by the Defendant in a Rate Class, does

not correspond with the industry profitability ratios generated by the federal government for the

industry in which the particular taxpayer (Kigre) operates.

131. That the business license fee charged by the Town is arbitrary and does not comply

with the express requirements of the subject business license fee ordinance where the actual rate

applied to a taxpayer in a Rate Class to calculate the business license fee amount does not

correlate to the profitability of the taxpayers in that rate class as determined by the SIC/NAICS.

132. That as a direct and proximate result of the Defendant's denial of due process,

Plaintiff suffered and will continue to suffer damages in an amount to be proven at trial of this

case.


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FOR A FIFTH CAUSE OF ACTION (DENIAL OF EQUAL PROTECTION)

133. The previous paragraphs are restated and realleged as fully as if set forth verbatim.

134. That Plaintiff Kigre has a right to the equal protection of the laws secured by the

Fourteenth Amendment to the United States Constitution and by Article 1, Section 3 of the South

Carolina Constitution.

135. That the business license fee imposed on Kigre by the subject business license fee

ordinance is random and arbitrary and in violation of the express language of the subject

ordinance.

136. That therefore entities that are placed in a Rate Class that accurately corresponds

with their profitability according to the SIC/NAICS data pay different amounts in business

license fees as it relates to industry profitability when compared with the business license fees

paid by businesses such as Kigre, all of whom were treated disparately by the Defendant Town

when they were placed in Rate Classes that do not correlate with industry profitability.

137. That the subject of business license fee ordinances as applied to Kigre, impairs

Kigre's rights to the equal protection of the law secured by the United States Constitution and the

South Carolina Constitution. The creation of a class of business entities who are placed in Rate

Classes that do not correspond to their industry profitability according to the SIC/NAICS data or

any basis for indexing or delineation between rate classes, was and is arbitrary and capricious.

138. That there is no rational basis for creating a class of business entities that are placed

in rate classes that do not correspond to their industry profitability according to the SIC/NAIC

data, when the express language of the subject business license fee ordinance requires otherwise.


33

139. That as a direct and proximate result of Defendant Town’s denial of equal protection

of the law, Plaintiff Kigre has sustained damages in an amount to be proven at the trial of this

case.

FOR A SIXTH CAUSE OF ACTION (CONVERSION)

140. The previous paragraphs are reiterated and realleged as fully as if repeated verbatim

herein.

141. That the actions of the Defendant Town set forth above, in forcing Kigre to pay the

Defendant $318,520.35 premised upon the alleged “industry estimate” made by Susan Simmons,

combined with the Town’s refusal to reimburse Kigre the complete amount following the Final

Hearing wherein Town Council learned that its License Inspector failed to follow the Municipal

Code, amount to a wrongful conversion of at least $85,113.58 of Kigre’s funds.

142. Conversion of Kigre’s funds being a tort under South Carolina law, Kigre is entitled

to an award of compensatory damages in an amount to be proven at trial, plus punitive damages.

FOR A SEVENTH CAUSE OF ACTION (DISCRIMINATION)

143. The previous paragraphs are reiterated and realleged as fully as if repeated verbatim

herein.

144. The actions set forth above by the Town and its currently unknown agents,

employees and/or third party advisors, in undertaking a secretive and baseless course of action

that allegedly resulted in an “estimated” annual income of $20,000,000 (20 million), amount to

discrimination against Kigre, depriving Kigre of its rights and damaging Kigre.


34

WHEREFORE, the Plaintiff Kigre, Inc. prays that this honorable Court inquire into the

matters set forth herein, and that the Plaintiff have the declarations as sought--that the ordinance

is improper and unlawfully places a burden on Plaintiff’s activities in interstate commerce, that

the ordinance as applied to this Plaintiff and others similarly situated is unconstitutional and that

the ordinance on its face and as it is being administered, deprives the Plaintiff Kigre, Inc. of due

process of the law and denies Kigre equal protection as to other businesses. Kigre further

requests the Court issue a declaration that denies the Town’s relief for any punitive damages, to

include interest and penalties. Kigre further requests this Court’s declarations that the Town pay

Kigre damages in the amount of the monies wrongfully converted by the Town, and/or for the

amount of damages the Town was unjustly enriched in keeping Kigre’s money paid to perfect its

appeal right to Town Council, and for all monies paid toward Business License fees since

October 2000. Further, the Plaintiff requests this Court hold the provision of the Town Code

providing only for attorneys fees for the Town in any action, to be unconstitutional. Further, the

Plaintiff requests this Court hold that the Defendant’s specific actions to collect additional

monies allegedly due from Kigre for the years 2007, 2008, 2009, 2010, 2011, and 2012, initiated

on June 15, 2012, are invalid and any decision based thereon unenforceable, because the Town

failed to follow its own Municipal Code in formulating the assessment, failed to conduct an

“audit,” failed to abide by the timetable set forth in the Code thereby waiving its rights to collect

the fees, failed without reason to place Kigre in the appropriate SIC classification, and failed to

adhere to the Statute of Limitations on such actions. Further, Kigre requests this Court enter its

declaration that the Statute of Limitations prohibits the Town reviewing for further collection,

any Business License Fee Applications more than three years prior to the Town’s anticipated

filing in this action of a Counterclaim. Further, Kigre requests that this Court find the Defendant


35

Town acted in bad faith during the collection process, misused the collection process,

discriminated against Kigre in the collection process and wrongfully converted at least

$85,113.58 of Kigre’s money. Further, the Plaintiff requests this Court award Kigre damages in

the amount to be proven at trial, plus punitive damages, its attorney fees and for any and all

further declarations as this Court deems just and proper.

Law Office of Thomas C. Taylor, LLC

S/Thomas C. Taylor Thomas C. Taylor (Fed Id #4038) P.O. Box 5550, Hilton Head Isl., SC 29938 Telephone:(843)785-5050-Fax:(843)785-5030 Email: [email protected] ATTORNEY FOR DEFENDANT JEFFREY A. MYERS Plaintiff requests trial by a jury S/Thomas C. Taylor Thomas C. Taylor Hilton Head Island, South Carolina June 28, 2013


mailto:[email protected]

9:13-cv-01776-SB Date Filed 06/28/13 Entry Number 1-1 Page 1 of 4

kigre inc. v town of hilton head island

Documents

state of south carolina

plaintiff kigre

town council

united states district

beaufort county

state of ohio

entry number

civil action number