Louisville Jefferson County Me v. Hotels.com, L.P.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 09a0434p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

X

-

LOUISVILLE/JEFFERSON COUNTY METRO

-

GOVERNMENT and LEXINGTON-FAYETTE

URBAN COUNTY GOVERNMENT, -

Plaintiffs-Appellants, -

Nos. 08-6302/6303

,

>

-

-

v.

-

-

HOTELS.COM, L.P. et al.,

Defendants-Appellees. -

N

Appeal from the United States District Court

for the Western District of Kentucky at Louisville.

No. 06-00480—Thomas B. Russell, District Judge.

Argued: October 14, 2009

Decided and Filed: December 22, 2009

*

Before: GILMAN and GIBBONS, Circuit Judges; ANDERSON, District Judge.

_________________

COUNSEL

ARGUED: Anthony G. Raluy, FOLEY, BRYANT, HOLLOWAY & RALUY,

Louisville, Kentucky, for Appellants. Darrel J. Hieber, SKADDEN, ARPS, SLATE,

MEAGHER & FLOM LLP, Los Angeles, California, for Appellees. ON BRIEF:

Anthony G. Raluy, Irvin Daniel Foley, FOLEY, BRYANT, HOLLOWAY & RALUY,

Louisville, Kentucky, Michael J. O’Connell, JEFFERSON COUNTY ATTORNEY’S

OFFICE, Louisville, Kentucky, Rochelle E. Boland, Leslye M. Bowman, LEXINGTON-

FAYETTE URBAN COUNTY GOVERNMENT DEPARTMENT OF LAW, Lexington,

Kentucky, for Appellants. Darrel J. Hieber, SKADDEN, ARPS, SLATE, MEAGHER

& FLOM LLP, Los Angeles, California, Karen L. Valihura, SKADDEN, ARPS,

SLATE, MEAGHER & FLOM LLP, Wilmington, Delaware, William Jay Hunter, Jr.,

Timothy J. Eifler, David S. Sullivan, STOLL KEENON OGDEN, Louisville, Kentucky,

Marcus G. Mungioli, Brian S. Stagner, KELLY HART & HALLMAN LLP, Forth

Worth, Texas, for Appellees.

*

The Honorable S. Thomas Anderson, United States District Judge for the Western District of

Tennessee, sitting by designation.

1

Nos. 08-6302/6303 Louisville/Jefferson County Metro Gov’t et al. Page 2

v. Hotels.com, L.P. et al.

_________________

OPINION

_________________

RONALD LEE GILMAN, Circuit Judge. Hotels.com, L.P. and various other

online travel companies (OTCs) engage in a business practice whereby they agree to pay

lodging establishments a contractually agreed room rate if the OTCs find customers to

rent the available rooms. Customers pay to rent the rooms at a higher “retail” rate

charged by the OTCs, which then remit the original negotiated price to the lodging

establishments along with any taxes applicable to the negotiated “wholesale” price.

Asserting that the OTCs are violating local tax ordinances by failing to pay a

transient room tax on the difference between the two rates, the Louisville/Jefferson

County Metro Government (LJCMG) and the Lexington-Fayette Urban County

Government (LFUCG) sued the OTCs in federal court. The district court granted the

OTCs’ motion to dismiss, reasoning that because the OTCs lack ownership and physical

control over the rooms rented, they do not constitute “like or similar accommodations

businesses” within the purview of the ordinances in question. As a result of this

decision, the counties are not collecting transient room taxes on the difference between

the two rates. For the reasons set forth below, we AFFIRM the judgment of the district

court.

I. BACKGROUND

A. Factual background

The Kentucky Enabling Acts authorize counties to impose a transient room tax

on “the rent for every occupancy of a suite, room, or rooms, charged by all persons,

companies, corporations, or other like or similar persons, groups or organizations doing

business as motor courts, motels, hotels, inns or like or similar accommodations

businesses.” Ky. Rev. Stat. Ann. § 91A.390(1). Money collected from the tax is used

to establish convention and tourist commissions “for the purpose of promoting

Nos. 08-6302/6303 Louisville/Jefferson County Metro Gov’t et al. Page 3

v. Hotels.com, L.P. et al.

convention and tourist activity.” Ky. Rev. Stat. Ann. § 91A.350(1). Pursuant to this

authority, the two counties in question enacted ordinances imposing a transient room tax

and adopted the language of the Enabling Acts to describe the category of businesses to

be taxed. See Louisville/Jefferson County, Ky., Code of Ordinances § 121.01(A);

Lexington-Fayette Urban County, Ky., Charter of Code of Code of Ordinances § 2-

172(a).

According to the counties’ allegations, the OTCs contract with hotels for rooms

at a discounted “wholesale” price. The OTCs then offer the rooms for rent at a “retail”

price that is higher than the negotiated wholesale rate and purport to include “tax

recovery charges and fees.” When a customer books a room using an OTC, the company

remits to the appropriate hotel both the negotiated wholesale price and the taxes due on

that lesser amount. The counties contend that this arrangement deprives them of the

taxes owed on the difference between the retail price and the wholesale price.

B. Procedural background

In September 2006, LJCMG sued the OTCs in federal district court for the

alleged violation of its transient room tax ordinance, seeking declaratory relief and

damages. Jurisdiction was based on diversity of citizenship under 28 U.S.C. § 1332(a).

LFUCG filed an intervenor complaint approximately one-and-a-half years later,

asserting the same cause of action and seeking similar relief.

The OTCs twice moved to dismiss the claim brought against them. They first

filed a motion to dismiss LJCMG’s complaint prior to the addition of LFUCG to the

lawsuit, asserting that they were not “motor courts, motels, hotels, inns or like or similar

accommodations businesses” for the purposes of LJCMG’s ordinance, and that

LJCMG’s proposed construction of the ordinance converted the enactment into an

impermissible excise tax under the Kentucky Constitution. In denying the motion, the

district court reasoned that LJCMG’s allegation that the OTCs leased rooms at a marked-

up retail price was sufficient at the pleading stage to qualify the companies as “like or

similar accommodations businesses” under the ordinance. Shortly thereafter, the OTCs

Nos. 08-6302/6303 Louisville/Jefferson County Metro Gov’t et al. Page 4

v. Hotels.com, L.P. et al.

filed a motion for reconsideration and, while this motion was pending, LFUCG filed its

intervenor complaint.

The district court granted the OTCs’ second motion and reversed its earlier

holding. It determined that the OTCs are not “like or similar” to “motor courts, motels,

hotels, or inns” because they “have neither ownership, nor physical control, of the rooms

they offer for rent.” Because the OTCs did not exist at the time the ordinances were

written, the court remarked that the Kentucky Enabling Acts “have simply failed to keep

up with the times.” The court therefore concluded that the OTCs were not subject to the

ordinances and that the counties’ claims should be dismissed. This timely appeal

followed.

II. ANALYSIS

A. Standard of review

A motion under Rule 12(b)(6) of the Federal Rules of Civil Procedure seeks to

have the complaint dismissed based upon the plaintiff’s failure to state a claim upon

which relief can be granted. The court must “accept all the . . . factual allegations as true

and construe the complaint in the light most favorable to the Plaintiff[ ].” Gunasekera

v. Irwin, 551 F.3d 461, 466 (6th Cir. 2009) (citation and internal quotation marks

omitted). Our review of a district court’s grant of a motion to dismiss is de novo. Id. at

465-66.

B. Overview

The counties’ primary contention is that the OTCs constitute “like or similar

accommodations businesses” under the ordinances. In addition, LJCMG argues that the

district court lacked a proper basis to grant the OTCs’ motion for reconsideration and

that the court impermissibly made factual findings in ruling on the motion. We will

address each issue in turn.

Nos. 08-6302/6303 Louisville/Jefferson County Metro Gov’t et al. Page 5

v. Hotels.com, L.P. et al.

C. “Like or similar accommodations businesses”

To determine whether the OTCs fall under the purview of the ordinances, we

begin by analyzing the statutory language. We must conduct this analysis utilizing

Kentucky law because jurisdiction in this case is based on diversity of citizenship. See

Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938). Essentially, we are obliged to decide

the case as we believe the Kentucky Supreme Court would do. See Stalbosky v. Belew,

205 F.3d 890, 893 (6th Cir. 2000) (applying Kentucky’s negligent-hiring law in a

diversity-of-citizenship case). We will therefore interpret the ordinances using the

framework developed by the Kentucky courts.

Under that framework, “[t]he essence of statutory construction is to ascertain and

give effect to the intent of the legislature.” Hale v. Combs, 30 S.W.3d 146, 151 (Ky.

2000). To determine legislative intent, courts should analyze the statutory language and

“[r]esort must be had first to the words, which are decisive if they are clear.” Stephenson

v. Woodward, 182 S.W.3d 162, 170 (Ky. 2005) (alteration in original) (internal quotation

marks omitted) (quoting Gateway Constr. Co. v. Wallbaum, 356 S.W.2d 247, 249 (Ky.

1962)). “[S]tatutes must be given a literal interpretation unless they are ambiguous and

if the words are not ambiguous, no statutory construction is required.” Commonwealth

v. Plowman, 86 S.W.3d 47, 49 (Ky. 2002).

1. Plain meaning

Our initial consideration, therefore, is to determine whether the words of the

ordinances reveal the legislature’s intent to include the OTCs in the category of “like or

similar accommodations businesses.” The counties make three arguments as to why the

plain meaning of the ordinances discloses such an intent. They first contend that, to

avoid rendering the phrase “like or similar accommodations businesses” meaningless,

it cannot be limited to brick-and-mortar establishments and must include companies such

as the OTCs that have only an online presence. But the phrase still has meaning even

if it is construed to exclude online businesses. Bed and breakfasts, hostels, and rooming

Nos. 08-6302/6303 Louisville/Jefferson County Metro Gov’t et al. Page 6

v. Hotels.com, L.P. et al.

houses, for example, are not motor courts, motels, hotels, or inns, yet they presumably

would fall into the “like or similar accommodations businesses” category.

Second, the counties argue that the phrase “like or similar” indicates a legislative

intent to broaden the category. That observation is surely correct, but it provides little

guidance as to how broadly to construe the category and whether the OTCs should be

included.

Finally, the counties emphasize the statutory language directing that the tax be

levied on “the rent for every occupancy” of a room charged by accommodations

businesses, and they contend that the full retail price constitutes the rent paid to occupy

a room. The counties’ focus on the amount paid by the ultimate customer is not

conclusive, however, because the tax is not assessed on the occupant of a room, but

rather on the entities doing business as hotels and the like. Accordingly, none of the

counties’ arguments regarding the plain meaning of the ordinances is persuasive.

Nor does the expressed purpose of the Enabling Acts provision authorizing the

imposition of the transient room tax provide clarification. According to the statute, a

portion of the money collected from the transient room tax “may be used to finance the

cost of acquisition, construction, operation, and maintenance of facilities useful in the

attraction and promotion of tourist and convention business.” Ky. Rev. Stat. Ann.

§ 91A.390(3). The remainder of the funds is to be used to “establish tourist and

convention commissions for the purpose of promoting convention and tourist activity.”

Ky. Rev. Stat. Ann. § 91A.350(1).

As described by the Kentucky Court of Appeals (the highest court in the state

until 1976), the statute “did two things: (1) it authorized the creation of an

administrative agency to promote convention and tourist activity in the county, and (2) it

provided for the financing of this activity by the imposition of a room tax upon hotels,

motels and the like.” Second Street Props., Inc. v. Fiscal Court of Jefferson County, 445

S.W.2d 709, 714 (Ky. 1969). The Court in Second Street noted the existence of a

“correlation” between the businesses taxed and the use of the money collected because

Nos. 08-6302/6303 Louisville/Jefferson County Metro Gov’t et al. Page 7

v. Hotels.com, L.P. et al.

hotels and motels in Jefferson County would “specially” benefit from an increase in

tourism. Id.

This ruling is the basis for the counties’ argument that the OTCs will likewise

reap the benefits of increased tourism in Louisville and Lexington. Because the OTCs

lack any physical presence in these locations, however, they do not “specially” benefit

from increased tourism in those cities any more than they would from an increase in

tourism in any other part of the country. We thus find unpersuasive the counties’

argument that the purpose of the Enabling Acts supports subjecting the OTCs to the

transient room tax.

The OTCs, on the other hand, attempt to bolster the decision of the district court

by noting that in 2009 the Kentucky General Assembly rejected a proposed bill that

would have extended the category of entities subject to the transient room tax to include

“other entities that may broker or facilitate the transaction.” H.B. 482, 2009 Gen.

Assem., Reg. Sess. (Ky. 2009). This proposed amendment is not conclusively in the

OTCs’ favor, however, because the legislature might have simply been trying to make

explicit what it thought was clear from the statute as presently worded—that OTCs are

“like or similar accommodations businesses.” More likely, though, is the legislature’s

recognition that the express language of the statute as it is written does not reach the

OTCs.

Elsewhere in the Enabling Acts, the Kentucky legislature defined “hotel” to mean

“any hotel, motel, inn, or other establishment which offers overnight accommodations

to the public for hire.” Ky. Rev. Stat. Ann. § 243.055(1)(a). This definition is limited,

however, to a separate section of the Acts regulating licenses for hotels to sell alcohol

as part of their in-room service. See Ky. Rev. Stat. Ann. § 243.055(1)(a). We therefore

find the definition unhelpful in resolving the instant dispute. Perhaps, as the counties

suggest, the legislature did not intend to restrict the transient room tax to brick-and-

mortar businesses as it did with alcohol licenses and therefore deliberately omitted the

word “establishment” from the taxing provisions. But given that the legislature defined

Nos. 08-6302/6303 Louisville/Jefferson County Metro Gov’t et al. Page 8

v. Hotels.com, L.P. et al.

“hotel” in a section completely separate from that granting the counties their taxing

authority, this observation is not persuasive as to the meaning of the statutory language

in question.

Kentucky caselaw provides a modicum of guidance as to the proper interpretation

of the statute. Specifically, three Kentucky appellate cases have analyzed the transient

room tax at issue. In Second Street, the Kentucky Court of Appeals upheld the

constitutionality of the JLCMG ordinance, concluding that the avowed purpose of the

Enabling Acts provision—promoting convention and tourist activities—was

“sufficiently definite to circumscribe the permitted proper functions of the administrative

agency.” 445 S.W.2d at 713. Finding a reasonable basis for subjecting “hotels, motels

and the like” to the tax, the Court reasoned that there was a “definite correlation between

the purpose of the tax and the business of the selected taxpayer” because “hotels and

motels will specially benefit from the expenditure of this tax revenue.” Id. at 713-14.

Second Street’s analysis is of limited help on the issue before us, however, and at most

it reveals a preference for a narrow reading of the statute given the Court’s concern to

limit the imposition of the tax to a well-defined category of businesses.

Two years later, the Kentucky Court of Appeals addressed a constitutional

challenge to a transient room tax imposed by the City of Lexington. The Court held that

there was no reasonable basis for singling out hotels and motels to pay the tax and

rejected the city’s justification for this categorization—that hotels and motels use city

services to a greater degree than other businesses—as unpersuasive. City of Lexington

v. Motel Developers, Inc., 465 S.W.2d 253, 258-59 (Ky. 1971). (Lexington’s tax

ordinances have since been amended to limit the use of the transient room tax to the

funding of convention and tourist activities.) As in Second Street, the Court repeatedly

referred to “hotels and motels” as well as “hotel and motel owners, and others similarly

engaged” when identifying the businesses subject to the tax. Id. at 254-55, 258-59.

Nevertheless, neither Second Street nor Motel Developers provide significant guidance

on the issue of how broadly to construe “like or similar accommodations businesses.”

Nos. 08-6302/6303 Louisville/Jefferson County Metro Gov’t et al. Page 9

v. Hotels.com, L.P. et al.

Lexington Relocation Services, LLC v. Lexington-Fayette Urban County

Government, No. 2003-CA-001593-MR, 2004 WL 1418184 (Ky. Ct. App. June 25,

2004), is more directly on point. In that case, Lexington Relocation Services (LRS)

leased or owned units in various Lexington apartment complexes and rented them, fully

furnished, to corporate employees who had relocated to Lexington or were on temporary

assignment there. Id. at *1. The court held that LRS qualified as an “accommodations

business” and was therefore subject to the transient room tax because a significant

fraction of its rentals “supply short-term accommodations suitable for visitors.” Id. at

*2. Moreover, the court noted that LRS held “itself out as operating, and does operate,”

in the short-term accommodations market. Id.

Unlike LRS, the OTCs in the present case do not physically control or furnish

the rooms they advertise. The OTCs also do not “supply” or “provide” rooms to visitors

in the same manner that LRS does because they take no part in making the room

physically available. Thus, the Kentucky Court of Appeals’s interpretation in Lexington

Relocation Services provides the most support, by way of contrast, for the OTCs’

argument that they are not subject to the transient room tax.

Overall, the wording of the ordinances, based on the language used and what

legislative intent is discernable, is inconclusive as to whether the OTCs constitute “like

or similar business accommodations.” Kentucky appellate caselaw, however, suggests

that they do not fall into this category.

2. Further interpretation

Where legislation lacks plain meaning, Kentucky courts are instructed to “resort

to the canons or rules of construction.” King Drugs, Inc. v. Commonwealth, 250 S.W.3d

643, 645 (Ky. 2008). Having found no plain meaning of the statute in question, the

district court concluded that the principle of ejusdem generis should apply. The rule

states that

where, in a statute, general words follow or precede a designation of

particular subjects or classes of persons, the meaning of the general

Nos. 08-6302/6303 Louisville/Jefferson County Metro Gov’t et al. Page 10

v. Hotels.com, L.P. et al.

words ordinarily will be presumed to be restricted by the particular

designation, and to include only things or persons of the same kind, class,

or nature as those specifically enumerated, unless there is a clear

manifestation of a contrary purpose.

Steinfeld v. Jefferson County Fiscal Court, 229 S.W.2d 319, 320 (Ky. 1950).

Applying this principle, the district court determined that the phrase “like or

similar accommodations businesses” should be restricted by the four types of businesses

listed immediately prior to this phrase—i.e., motor courts, motels, hotels, and inns. See

Garcia v. Commonwealth, 185 S.W.3d 658, 664 (Ky. Ct. App. 2006) (applying the

principle of ejusdem generis to conclude that the term “other nuisance” is limited to

nuisances similar to noise and smoke because it was preceded by those words in the

statute). The district court reasoned that the OTCs are not like or similar to the listed

types of businesses because they “have neither ownership, nor physical control, of the

rooms they offer for rent.” According to the counties, this reading impermissibly adds

the terms “owner” and “physical establishment” to the ordinances. We are unpersuaded

by this argument, however, because the notions of ownership and physical control over

the rooms for rent are simply shared characteristics of motor courts, motels, hotels, and

inns. The district court thus properly applied the principle of ejusdem generis to the

ordinances in question.

When faced with the same issue, the United States Court of Appeals for the

Fourth Circuit similarly interpreted a county ordinance in North Carolina as excluding

OTCs from the transient room tax. There, the ordinance at issue applied to “[o]perators

of hotels, motels, tourist homes, tourist camps, and similar type businesses.” Pitt County

v. Hotels.com, L.P., 553 F.3d 308, 313 (4th Cir. 2009) (alteration in original). The court

applied the principle of ejusdem generis to conclude that the OTCs were not “similar

type businesses” because the specifically enumerated businesses preceding the expansive

phrase were physical establishments that “provide lodging to patrons on site.” Id.

Because the OTCs did not physically provide the rooms, the court concluded that they

were outside the parameters of the statute. Id.

Nos. 08-6302/6303 Louisville/Jefferson County Metro Gov’t et al. Page 11

v. Hotels.com, L.P. et al.

The counties assert that this interpretation of the statute leads to the “absurd

result” that a county would receive less tax money if a customer books a hotel room

through an OTC than if the room is booked directly through a lodging establishment.

This potential loophole has been recognized by several district courts in other circuits.

See, e.g., City of Charleston v. Hotels.com, L.P., 586 F. Supp. 2d 538, 543 (D.S.C. 2008)

(observing that exempting OTCs from a similar tax “would lead to the absurd result of

a hotel being able to establish and operate a wholly-owned subsidiary corporation in

another jurisdiction which handled all of its reservations and booking, and be completely

immune from municipal accommodations taxes”), holding limited by Pitt County, 553

F.3d at 313; City of Fairview Heights v. Orbitz, Inc., No. 05-CV-840, 2006 WL 6319817

(S.D. Ill. July 12, 2006) (reasoning that a narrow interpretation of a tax ordinance

“would open up a potentially gaping loophole” whereby “a hotel operator could simply

incorporate a shell entity or make some other similar arrangement, rent the hotel rooms

to that entity for a nominal amount, and then re-rent the rooms to consumers, who would

be taxed only on the nominal sum paid by the side entity to the operator”).

We reject the counties’ “absurdity” argument, however, in part because the

Kentucky General Assembly, not the court, is the proper entity to close any such

potential loophole. See Camera Ctr., Inc. v. Revenue Cabinet, 34 S.W.3d 39, 45 (Ky.

2000) (“[T]he legislature can easily choose to close a tax exemption window of

opportunity either in whole or in part.”). Furthermore, unlike in the hypotheticals set

forth above, none of the OTCs here are under common ownership with the physical

establishments that control the rooms.

Moreover, the recent decision of the Georgia Supreme Court in Expedia, Inc. v.

City of Columbus, 681 S.E.2d 122 (Ga. 2009), is instructive by way of the contrasting

language in the city ordinance before the state court. The City of Columbus ordinance

assesses a tax on “the charge to the public” for a room, causing the Court to conclude

that because “Expedia is not the end-consumer, is not a member of the public at large,

and is not the occupant of the hotel room,” the tax targets the full rate paid by the

customer. Id. at 128. We agree with that reasoning, but the lack of equivalent language

Nos. 08-6302/6303 Louisville/Jefferson County Metro Gov’t et al. Page 12

v. Hotels.com, L.P. et al.

in the ordinances before us leads to the opposite result. In other words, imposing the

transient room tax based on “the charge to the public” provides clarity that is sorely

lacking in the ordinances at hand.

Finally, any doubt as to whether the OTCs are “like or similar accommodations

businesses” must be resolved in favor of the OTCs under Kentucky law. Kentucky’s

highest court has stated that

[t]axing laws should be plain and precise, for they impose a burden upon

the people. That imposition should be explicitly and distinctly revealed.

If the Legislature fails so to express its intention and meaning, it is the

function of the judiciary to construe the statute strictly and resolve doubts

and ambiguities in favor of the taxpayer and against the taxing powers.

George v. Scent, 346 S.W.2d 784, 789 (Ky. 1961). “This is particularly so in the matter

of pointing out the subjects to be taxed.” Id. Because the counties’ interpretation of the

ordinances in question is at best doubtful, we are obligated under Kentucky law to

resolve the doubt “in favor of the taxpayer,” i.e., the OTCs.

D. District court’s grant of the OTCs’ motion for reconsideration

In addition to appealing the determination that the OTCs are not “like or similar

accommodations businesses,” LJCMG asserts that the district court had no proper basis

for granting the OTCs’ motion for reconsideration. But “courts will find justification for

reconsidering interlocutory orders whe[re] there is (1) an intervening change of

controlling law; (2) new evidence available; or (3) a need to correct a clear error or

prevent manifest injustice.” Rodriguez v. Tenn. Laborers Health & Welfare, 89 F.

App’x 949, 959 (6th Cir. 2004). In light of the foregoing analysis, the district court

properly concluded that it had committed a clear error of law when it failed to exempt

the OTCs from the transient room tax the first time around. We are therefore

unpersuaded by LJCMG’s argument on this point.

LJCMG also contends that the district court erred by making a factual finding

that the OTCs do not exercise physical control over the rooms they rent. By doing so,

Nos. 08-6302/6303 Louisville/Jefferson County Metro Gov’t et al. Page 13

v. Hotels.com, L.P. et al.

LJCMG asserts, the court failed to resolve all factual disputes in LJCMG’s favor on a

motion to dismiss. See Great Lakes Steel, Div. of Nat’l Steel Corp. v. Deggendorf, 716

F.2d 1101, 1104-05 (6th Cir. 1983) (“A motion to dismiss . . . [for] failure to state a

claim upon which relief can be granted must be viewed in the light most favorable to the

party opposing the motion.”). In making this argument, LJCMG relies on City of San

Antonio v. Hotels.com, No. SA-06-CA-381-OG, 2007 WL 1541184 (W.D. Tex. March

20, 2007). The court in that case denied a motion to dismiss filed by the OTCs because

there was a factual dispute as to whether the OTCs exercised control over the rooms.

Id. at *3. But the court also noted that the city had alleged facts relating to the issue of

control. Id. In contrast, the counties here have not alleged that the OTCs have any

physical control over the rooms. There is accordingly no factual dispute to be resolved

in the counties’ favor. (We note, by the way, that a jury verdict was reached in October

2009 in the City of San Antonio case, with the jury concluding that, under the terms of

San Antonio’s tax ordinance, the OTCs exercise control over the hotel rooms they rent.

But that ordinance, because it imposes an excise tax on the price a transient pays to

occupy a hotel room, bears little resemblance to the ones at issue in the present case.)

III. CONCLUSION

For all of the reasons set forth above, we AFFIRM the judgment of the district

court.