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Coca-Cola Field, other venues call city's ticket surcharge an illegal 'tax'

You could soon be paying more for tickets at some of the city's most popular venues.

But will it be a new ticket tax or just an extra fee?

And why will it apply to just five entertainment destinations?

Those questions are at the heart of a debate that could put a legal roadblock in front of a Brown administration plan to bring in more money for the city budget by tacking on surcharges to ticket sales at cultural and sports events.

The proposed surcharges would be added to the prices of tickets to cultural and sports events at Canalside, Coca-Cola Field, KeyBank Center, Kleinhans Music Hall and Shea's Performing Arts Center.

Mayor Byron W. Brown says the additional fees –  ranging from 50 cents to $3.50 – would help cover the city's cost of providing maintenance and security.

But lawyers for the five venues argue it's a new tax that the city has no authority to levy.

"It fails as a matter of law," lawyers for the venues stated in documents filed with the city.

The lawyers call the surcharge a tax, not a fee, saying it would pay for "general government function expenses," and contend that it is illegal because any such "tax" would first have to be authorized by New York State.

"Municipalities have no inherent taxing power," the lawyers wrote. "They may only tax to the extent the state delegates them power to do so."

Not only would the ticket "tax" be unlawful, it would also violate some of the city's lease and/or operating agreements with the venues, they say. And they contend the plan unfairly targets certain venues and events while exempting others.

But the Brown administration – while declining to address the specifics raised by the venues – sees things differently.

"We don't agree with those assertions, but we continue to have a positive dialogue with stakeholders and expect a positive outcome for everyone involved," said Michael J. DeGeorge, spokesman for Brown.

The two sides are meeting to work through the issues, said Adam S. Walters, an attorney with Phillips Lytle who is representing the five venues.

"There are some real fundamental challenges that we have to get through, but we are absolutely committed to working while you're on recess to resolve those concerns," Walters told members of the Common Council before they recessed for the summer.

Under the proposal, the venue operators would collect the surcharge, track the number of tickets sold for the month, calculate the fees collected and transmit the money to the city, where it would go into a Public Facility, Sports, Theater and Artistic Fund.

When Mayor Byron W. Brown released the specific fees last week, some Shea's patrons had mixed responses. Some expressed the feeling that "a dollar or two more" wouldn't matter if the money is needed for security and to keep the venues in good shape, while others said entertainment already is expensive and "the government already gets enough."

Brown first announced his ticket surcharge plan in May when he introduced the 2018-19 city budget. The surcharge would generate an estimated $2 million for the city, officials said.

Under the proposal, the fees would be:

  • 50 cents for tickets with face value of $10.01 to $25.
  • $1.50 for tickets with face value of $25.01 to $50.
  • $2.50 for tickets with face value of $50.01 to $75.
  • $3.50 for tickets with face value of $75.01 and above.

According to the mayor, the surcharge would help cover the costs of training for emergency responders and overtime needed to ensure the safety of ticket holders. The surcharge also would cover the costs of police patrols, traffic control, infrastructure in the surrounding areas and capital maintenance of the buildings. It would also cover services provided in the vicinity of the venues, such as bringing in extra crews to plow snow to make sure streets around the buildings are safe and passable.

Buffalo residents would be eligible for refunds, although officials have not yet said how city residents would apply for those refunds.

The operators of the five sites have argued they are being unfairly targeted by what they describe as a new tax. They noted that other publicly owned facilities, including the Buffalo Zoo and the city's golf courses, would not be subjected to the new ticket surcharges.

Here's how much more you could pay for tickets to prime venues in Buffalo

And they say the plan would violate the city's agreements with the venues, which are either owned by the city or are located on city-owned land.

"In certain leases and/or other contracts, the city expressly addressed fees and charges beyond the rents negotiated with the operators and agreed that it would not impose any additional fee, charge or tax on admissions to the operators' events," their documents read.

They also argue that in "targeting" the five venues and  "raising significantly more money than is actually required to pay for 'additional police presence' and 'infrastructure and maintenance costs' associated with the events at the venues," the city would be imposing an unfair burden on those sites.

Walters declined to further explain how the venues hope to resolve the issue.

"We're just going to take it step by step," Walters said.

Spokespersons for the venues also declined to comment, with some referring to statements they made when the fee plan was first announced. At that time, they said keeping ticket prices as low as possible was always a concern.

Brown's proposal would have to be approved by the Council.

"There is some work that has to go into this as far as coming to an agreement with these institutions," said Council President Darius G. Pridgen. "We'll be back in September. Hopefully by that time the administration and these groups will have had a sit-down, and we'll wait to see what the outcome of that is."

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