Editor’s Note: In this Chapter the word "Sheriff" is changed
to "Chief of Police" pursuant to the St. Charles County Charter Article
IV, Sections 4.250 and 4.1300, as amended in 2012 and effective 1-1-2015,
and St. Charles County Ord. No. 15-012, Section 2, adopted 1-26-2015.
[Ord. No. 09-035 §1, 4-1-2009]
As used in this Chapter, the following terms shall have these
prescribed meanings:
Any person or group of persons performing or engaging in
any activity, enterprise, profession or occupation for gain, benefit,
advantage or livelihood. The term "business entity" shall include,
but not be limited to, self-employed individuals, partnerships, corporations,
contractors and subcontractors. The term "business entity" shall include
any business entity that possesses a business permit, license or tax
certificate issued by the County, any business entity that is exempt
by law from obtaining such a business permit and any business entity
that is operating unlawfully in the County without such a business
permit. The term "business entity" shall not include a self-employed
individual with no employees or entities utilizing the services of
direct sellers as defined in Subdivision (17) of Subsection 12 of
Section 288.034, RSMo.
A person, employer or business entity that enters into an
agreement to perform any service or work to be provided in the unincorporated
area of the County or to provide, within the unincorporated area of
St. Charles County, a certain product to a person or business entity
in exchange for valuable consideration. This definition shall include,
but not be limited to, a general contractor, subcontractor, independent
contractor, contract employee, project manager or a recruiting or
staffing entity.
Any person performing work or service of any kind or character
for hire within the unincorporated area of the County of St. Charles.
Any person or entity employing any person for hire within the unincorporated area of the County of St. Charles, including a public employer. Where there are two (2) or more putative employers, any person or entity taking a business tax deduction for the employee in question shall be considered an employer of that person for purposes of Sections 622.525 to 622.550.
The act of employing or state of being employed, engaged
or hired to perform work or service of any kind or character within
the unincorporated area of the County of St. Charles.
Any of the electronic verification of work authorization
programs operated by the United States Department of Homeland Security
or an equivalent Federal work authorization program operated by the
United States Department of Homeland Security to verify information
of newly hired employees, under the Immigration Reform and Control
Act of 1986 (IRCA), P.L.99-603.
A person acts knowingly or with knowledge:
With respect to the person's conduct or to attendant circumstances
when the person is aware of the nature of the person's conduct or
that those circumstances exist; or
With respect to a result of the person's conduct when the person
is aware that the person's conduct is practically certain to cause
that result.
Any agency or unit of this State which now is, or hereafter
shall be, authorized to levy taxes or empowered to cause taxes to
be levied.
Every department, agency or instrumentality of the State
or political subdivision of the State.
An alien who does not have the legal right or authorization
under Federal law to work in the United States, as defined in 8 U.S.C.
1324a(h)(3).
Any job, task, employment, labor, personal services or any
other activity for which compensation is provided, expected or due,
including, but not limited to, all activities conducted by business
entities.
[Ord. No. 09-035 §1, 4-1-2009]
A.
No
business entity or employer shall knowingly employ, hire for employment
or continue to employ an unauthorized alien to perform work within
the unincorporated area of the County of St. Charles.
B.
As
condition for the award of any contract or grant in excess of five
thousand dollars ($5,000.00) by the County of St. Charles to a business
entity, the business entity shall, by sworn affidavit and provision
of documentation, affirm its enrollment and participation in a Federal
work authorization program with respect to the employees working in
connection with the contracted services. Every such business entity
shall also sign an affidavit affirming that it does not knowingly
employ any person who is an unauthorized alien in connection with
the contracted services.
C.
St.
Charles County, which enrolled in the Federal work authorization program
in 2007, shall continue its participation so long as a Federal work
authorization program is in operation.
D.
An employer may enroll and participate in a Federal work authorization program and shall verify the employment eligibility of every employee in the employer's hire whose employment commences after the employer enrolls in a Federal work authorization program. The employer shall retain a copy of the dated verification report received from the Federal Government. Any business entity that participates in such program shall have an affirmative defense that such business entity has not violated Subsection (A) of this Section.
E.
A general contractor or subcontractor of any tier shall not be liable under Sections 622.525 to 622.550 when such general contractor or subcontractor contracts with its direct subcontractor who violates Subsection (A) of this Section, if the contract binding the contractor and subcontractor affirmatively states that the direct subcontractor is not knowingly in violation of Subsection (A) of this Section and shall not henceforth be in such violation and the contractor or subcontractor receives a sworn affidavit under the penalty of perjury attesting to the fact that the direct subcontractor's employees are lawfully present in the United States.
[Ord. No. 09-035 §1, 4-1-2009]
A.
The Department of Community Development shall enforce the requirements of Sections 622.525 to 622.550. The County Counselor shall prosecute violations of this Chapter.
B.
The
Department of Community Development shall provide a statement explaining
the provisions of this Chapter with every permit issued, and any County
department issuing licenses shall likewise provide such statement.
C.
An
enforcement action shall be initiated by means of a written, signed
complaint under penalty of perjury as defined in Section 575.040,
RSMo., to the Director of Community Development submitted by any County,
municipal or other official of a political subdivision within St.
Charles County, any business entity with its principal place of business
within the County or a County resident. A valid complaint shall include
an allegation which describes the alleged violator as well as the
actions constituting the violation and the date and location where
such actions occurred. A complaint which alleges a violation solely
or primarily on the basis of national origin, ethnicity or race shall
be deemed invalid and shall not be investigated.
D.
Upon Receipt Of Valid Complaint—Director Of Community Development's
Responsibilities.
1.
Upon receipt of a valid complaint, the Director of Community Development
shall, within two (2) business days, provide such information to the
Attorney General of the State of Missouri and inquire as to whether
the Attorney General is accepting the complaint for investigation.
If the Attorney General accepts the investigation, the Director of
the Department of Community Development shall turn the matter over
to the Attorney General with a written request that the Attorney General
provide a summary of the disposition of the matter. If the Attorney
General does not accept the matter or if the Attorney General does
not respond within three (3) business days, then within five (5) business
days the Director of Community Development shall request identity
information from the business entity regarding any persons alleged
to be unauthorized aliens. Such request shall be made by certified
mail. In addition, the Director of Community Development, subject
to the approval of the Director of Administration, may promulgate
rules pursuant to which building inspectors may be used to verify
information obtained in the course of the investigation of a valid
complaint.
2.
The Director of Community Development shall direct the applicable
County department to suspend any applicable license, permit or exemptions
of any business entity which fails, within fifteen (15) business days
after receipt of the request, to provide such information and shall
notify the Attorney General of the State of Missouri of the inquiry
and failure.
3.
Should the Attorney General enter the investigation after the third
(3rd) business day after notice has been provided to that office,
the County investigation shall be coordinated with the Attorney General's
investigation if the Attorney General so agrees.
E.
The
Department of Community Development, after receiving the requested
identity information from the business entity, shall work with the
Police Department to submit identity data required by the Federal
Government to verify, under 8 U.S.C. 1373, the immigration status
of such persons and shall provide the business entity with written
notice of the results of the verification request:
1.
If the Federal Government notifies the Chief of Police that an employee
is authorized to work in the United States, the Department of Community
Development shall take no further action on the complaint;
2.
If the Federal Government notifies the Chief of Police that an employee is not authorized to work in the United States, the Chief of Police shall notify the Department of Community Development, which shall proceed on the complaint as provided in Subsection (F) of this Section;
3.
If the Federal Government notifies the Chief of Police that it is
unable to verify whether an employee is authorized to work in the
United States, the Department of Community Development shall take
no further action on the complaint until a verification from the Federal
Government concerning the status of the individual is received. At
no point shall any County official attempt to make an independent
determination of any alien's legal status without verification from
the Federal Government.
F.
Federal Notification—County Is Authorized To Bring Civil Action—When.
1.
If the Federal Government notifies the Chief of Police that an employee is not authorized to work in the United States and the employer of the unauthorized alien participates in a Federal work authorization program, there shall be a rebuttable presumption that the employer has met the requirements for an affirmative defense under Subsection (D) of Section 622.530 and the employer shall comply with Subsection (G) of this Section.
2.
If the Federal Government notifies the Chief of Police that an employee is not authorized to work in the United States, the Department of Community Development shall notify the County Counselor who shall be authorized to bring a civil action in St. Charles County Municipal Court if the County Counselor reasonably believes the business entity knowingly violated Subsection (A) of Section 622.530. Any civil action filed in the Municipal Court arising from this Chapter shall be placed on the first (1st) available court date, but no later than twenty-one (21) days from the service of the summons on the business entity alleged to have knowingly violated Subsection (A) of Section 622.530.
a.
If the County Municipal Court finds that a business entity did not knowingly violate Subsection (A) of Section 622.530, the employer shall have fifteen (15) business days to comply with Subdivision (1) and paragraph (a) of Subdivision (2) of Subsection (G) of this Section. If the entity fails to do so, the court shall direct the County to suspend the business permit, if such exists, and any applicable licenses or exemptions of the entity until the entity complies with Subsection (G) of this Section;
b.
If the court finds that a business entity knowingly violated Subsection (A) of Section 622.530, the court shall direct the County to suspend the business permit, if such exists, and any applicable licenses or exemptions of such business entity for fourteen (14) days. Permits, licenses and exemptions shall be reinstated for entities who comply with Subsection (G) of this Section at the end of the fourteen (14) day period.
G.
The
correction of a violation with respect to the employment of an unauthorized
alien shall include the following actions:
1.
Business entity's responsibility with respect to employment
of an unauthorized alien—correction of a violation.
a.
The business entity terminates the unauthorized alien's employment. If the business entity attempts to terminate the unauthorized alien's employment and such termination is challenged in a court of the State of Missouri, the fifteen (15) business day period for providing information to the Department of Community Development referenced in Subsection (D) of this Section shall be tolled while the business entity pursues the termination of the unauthorized alien's employment in such forum; or
b.
The business entity, after acquiring additional information from the employee, requests a secondary or additional verification by the Federal Government of the employee's authorization, under the procedures of a Federal work authorization program. While this verification is pending, the fifteen (15) business day period for providing information to the Department of Community Development referenced in Subsection (D) of this Section shall be tolled; and
2.
A legal representative of the business entity submits, at an office
designated by the County Counselor, the following:
a.
A sworn affidavit stating that the violation has ended that shall
include a description of the specific measures and actions taken by
the business entity to end the violation and the name, address and
other adequate identifying information for any unauthorized aliens
related to the complaint; and
b.
Documentation acceptable to the County Counselor which confirms that
the business entity has enrolled in and is participating in a Federal
work authorization program.
H.
The suspension of a business license or licenses under Subsection (F) of this Section shall terminate one (1) business day after a legal representative of the business entity submits the affidavit and other documentation required under Subsection (G) of this Section following any period of restriction required under Subsection (F) of this Section.
I.
For an entity that violates Subsection (A) of Section 622.530 for a second (2nd) time, the court shall direct the County to suspend, for one (1) year, the business permit, if such exists, and any applicable license or exemptions of the business entity. For a subsequent violation, the court shall direct the county to forever suspend the business permit, if such exists, and any applicable license or exemptions of the business entity.
J.
1.
Upon the first (1st) violation of Subsection (A) of Section 622.530 by any business entity awarded a County contract or grant, the business entity shall be deemed in breach of contract and the County may terminate the contract and suspend or debar the business entity from doing business with the County for a period of three (3) years. Upon such termination, the County may withhold up to twenty-five percent (25%) of the total amount due to the business entity;
2.
Upon a second (2nd) or subsequent violation of Subsection (A) of Section 622.530 by any business entity awarded a County contract or grant, the business entity shall be deemed in breach of contract and the County may terminate the contract and permanently suspend or debar the business entity from doing business with the County. Upon such termination, the County may withhold up to twenty-five percent (25%) of the total amount due to the business entity.
K.
Sections 622.525 to 622.550 shall not be construed to deny any procedural mechanisms or legal defenses included in a Federal work authorization program.
L.
Any business entity subject to a complaint and subsequent enforcement under Sections 622.525 to 622.540, or any employee of such a business entity, may challenge the enforcement of this Section with respect to such entity or employee in the County Municipal Court.
M.
If
the County Municipal Court finds that any complaint made against that
business entity is frivolous in nature or finds no probable cause
to believe that there has been a violation, the court shall dismiss
the case against the business entity. For purposes of this Subsection, "frivolous" shall mean a complaint not shown by clear and
convincing evidence to be valid. Any person who submits a frivolous
complaint shall be reported to the Attorney General of the State of
Missouri so that the Attorney General is aware of the frivolous complaint
as he fulfills his duties pursuant to Section 285.535, RSMo. If the
court finds that a complaint is frivolous or that there is not probable
cause to believe there has been a violation, the County Counselor
shall issue a public report to the complainant and the alleged violator
stating with particularity its reasons for dismissal of the complaint.
Upon such issuance, the complaint and all materials relating to the
complaint shall be a public record as defined in Chapter 610, RSMo.
N.
The determination of whether a worker is an unauthorized alien shall be made by the Federal Government. A determination of such status of an individual by the Federal Government shall create a rebuttable presumption as to that individual's status in any judicial proceedings brought under this Section or Section 622.530.
O.
The
County Municipal Court may take judicial notice of any verification
of an individual's status previously provided by the Federal Government
and may request the Federal Government to provide automated or testimonial
verification.
[Ord. No. 09-035 §1, 4-1-2009]
The Department of Finance shall maintain a database that documents
any business entity whose permit, license or exemption has been suspended
or County contract has been terminated.
