[Editor's Note: Ordinance #90-5, portions of which are codified
herein, establishes a new basis for charging business license taxes
in the City of Firebaugh. A complete copy of this ordinance is on
file in the office of the City Clerk.]
[Ord. #287, S1; Ord. #90-05, SS1, 2]
Whenever an ordinance now in force or hereafter enacted requires
that a license be obtained for the conducting, carrying on, or managing
of any business, occupation, activity, trade, calling or profession,
and whenever an ordinance now in force or hereafter enacted requires
that a license fee must be paid for a year during any part of which
the licensee conducts the licensed activity or activities, such licensee
shall pay a license fee measured by the gross receipts from business
done in the City during the fiscal year as hereinafter described,
according to the fee schedule set forth in the Master Fee Resolution.
Each fiscal year shall be divided into four quarters, commencing
July 1, October 1, January 1, and April 1. If the licensed activity
or activities are commenced on or after April 1 and before July 1,
the prorated portion shall be 1/4 of the full annual license fee.
If the activity or activities are commenced at any time on or after
January 1 and before April 1, the prorated portion shall be 1/2 of
the full annual license fee. If the activity or activities are commenced
at any time on or after October 1 and before January 1, the prorated
portion shall be 3/4 of the full annual license fee. If the activity
or activities are commenced at any time on or after July 1 and before
October 1, the licensee shall pay the full annual license fee.
[HISTORY: Business licenses were adopted by the City Council
of the City of Firebaugh, California on March 12, 1929 as Ordinance
#5. Amended in its entirety by Ordinance #62, adopted January 10,
1942; and again amended in its entirety by Ordinance #277, adopted
on June 28, 1971. Amendments noted where applicable.]
[Ord. #227, S1; New; Ord. #90-5, S3]
As used in this section:
a.
PERSON – shall mean and include all domestic and foreign corporations,
associations, syndicates, joint stock corporations, partnerships of
every kind, clubs, Massachusetts, business, or common law trusts,
societies, and individuals transacting and carrying on any business
in the City, other than as an employee.
b.
CITY – shall mean the City of Firebaugh, a municipal corporation
of the State of California, in its present incorporated form or in
any later reorganized, consolidated, enlarged or re-incorporated form.
c.
SALE – shall mean and include the transfer, in any manner or
by any means whatsoever, of title or use to property for a consideration;
the serving, supplying, or furnishing for a consideration of any property;
and a transaction whereby the possession of property is transferred
and the seller retains the title shall likewise be deemed a sale.
The foregoing definitions shall not be deemed to exclude any transaction
which is or which, in effect, results in a sale within the contemplation
law.
d.
SWORN STATEMENT – shall mean an affidavit sworn to before a
person authorized to take oaths, or a declaration or certification
made under penalty of perjury.
e.
COLLECTOR – shall mean the City manager or other City officer
charged with the administration of this ordinance.
f.
GROSS RECEIPTS – shall mean the total of amounts actually received
for the performance of any act or service, of whatever nature it may
be, for which a charge is made or credit allowed, whether or not such
act or service is done as a part of or in connection with the sale
of materials, goods, wares, or merchandise. Included in "gross receipts"
shall be all receipts, cash, credits and property of any kind or nature,
without any deduction therefrom on account of the cost of the property
sold, the cost of the materials used, labor or service costs, interest
paid or payable, or losses, or other expense whatsoever. Excluded
from "gross receipts" shall be the following:
1.
Cash discounts allowed and taken on sales.
2.
Any tax collected from the consumer or purchaser and which is separately
stated at time of sale.
3.
Such part of the sale price of property returned by purchasers upon
rescission of the contract of sale as is refunded either in cash or
by credit.
4.
Amounts collected for others where the business is acting as an agent
or trustee to the extent that such amounts are paid to those for whom
collected, provided the agent or trustee has furnished the collector
with the names and addresses of the others and the amounts paid to
them.
5.
Receipts of refundable deposits, except that refundable deposits
forfeited and taken into income of the business shall not be excluded.
6.
As to a retail gasoline dealer, a portion of his receipts from the
sale of motor vehicle fuels equal to the motor vehicle fuel license
tax imposed by and previously paid under the provisions of Part 2
of Division 2 of the Revenue and Taxation Code of the State of California.
7.
As to a retail gasoline dealer, the special motor fuel tax imposed
by Section 4041 of Title 26 of the United States Code if paid by the
dealer or collected by him from the consumer or purchaser.
g.
PROFESSIONAL - shall mean every person whose calling requires specialized
knowledge, training or academic preparation, and certification or
licensing, and shall include, but shall not be limited to, the following:
accountant, actuary, analyst, archaeologist, attorney- at-law, audiologist,
bacteriologist, certified shorthand reporter, chiropractor, consultant,
counselor, dentist, dental hygienist, insurance adjuster, insurance
broker, landscape architect, mortician, metallurgist, nurse, oculist,
optometrist, osteopath, osteopathist, pharmacist, physical therapist,
physician, podiatrist, psychologist, psychiatrist, real estate licensee,
speech pathologist, surgeon, surveyor, veterinarian, x-ray technician,
or other professions determined by the collector to be similar thereto.
h.
"CONTRACTOR" shall mean contractor, subcontractor, specialty contractor
and builder, and the phrase "sales and service" in connection with
contractors shall include only receipts from jobs or projects located
within the City.
i.
BROKER in securities and commodities" shall mean any person operating
independently as a broker dealing in stocks, bonds, notes, securities
or other commodities, including farm or ranch products, but not real
estate brokers.
j.
MANAGER OF A PUBLIC MARKET shall mean any person conducting, carrying
on or managing a public market with a minimum of five stalls, booths
or spaces leased or rented to peddlers.
k.
TRANSIENT PHOTOGRAPHER shall mean photographer who has no lease on
a studio or place of business in the County of Fresno, and who takes
photographs on a house-to-house basis, or in a studio or building,
or in or upon any street, alley or other public place, whether unenclosed
or upon a vacant lot or parcel of land within the City, regardless
of whether the actual sale of photographs is made upon such premises
or elsewhere, or whether sittings are taken.
l.
MANAGER OF AN AUCTION SALE shall mean any person conducting, carrying
on or managing the business of an auctioneer.
m.
ITINERANT MERCHANT or "itinerant vendor of goods" shall mean a person,
whether as principal or agent, who engages in a temporary or transient
business in the City, selling goods, wares or merchandise, and who
for such purpose leases or occupies a room, store building, structure
or place in the City for the exhibition or sale of such goods, wares
or merchandise.
n.
DIRECTORY SALESMAN shall mean every person conducting, carrying on
or managing the business of soliciting for or selling directories,
such as a City or business directory.
o.
MANAGER OF A PUBLIC ENTERTAINMENT shall mean any person conducting,
carrying on or managing any theater, moving picture show, opera, concert,
minstrel show, band concert, musical performance or exhibition.
p.
CIRCUS MANAGER shall mean every person conducting, carrying on or
managing a circus or other similar exhibition.
q.
CIRCUS shall mean an exhibition or entertainment at which feats of
horsemanship, acrobatic feats, or trained or wild animals are exhibited
or displayed.
r.
AGRICULTURAL FAIR shall mean a competitive exhibition of farm products
with accompanying entertainment and amusements similar to those found
at carnivals and other commercial booths and exhibits.
s.
CARNIVAL MANAGER shall mean every person conducting, carrying on
or managing a carnival.
t.
CARNIVAL shall mean a group of two or more shows, entertainments,
games, devices, amusements, vaudeville, dramatic or minstrel performance,
or games, tricks, devices or wheels, the result of the operation of
which is dependent upon a change or skill, and as a result of the
operation of which things or representatives of value are given or
paid, which are conducted in tents or temporary structures upon the
public streets, parks or upon vacant lots.
u.
EXHIBITOR OF FEATS OF CHANCE OR SKILL shall mean any person exhibiting
or charging a compensation for the use of any microscope, telescope,
lung or muscle tester, phonographic diversion, ball, knife or ring
throwing, galvanic battery, or other feat, performance or diversion.
v.
MANAGER OF A MERRY-GO-ROUND OR SIMILAR AMUSEMENT shall mean every
person conducting, carrying on or managing a merry-go-round, flying
horses, ferris wheel or other similar device, whether designed and
operated solely for the amusement of children, or not.
w.
PAWNBROKER shall mean any person conducting, carrying on or managing
a pawnshop, or acting as a pawnbroker.
x.
SUPPLIER OF FINANCING shall mean every person loaning money, advancing
credit, or loaning credit, whether security of any kind is taken for
such loan or advance or not, or purchasing or discounting of any obligation
of money due or to become due, or any evidence of any obligation of
money due or to become due, whether such obligation is secured or
guaranteed, or not, other than any person conducting the business
of a bank or savings and loan business or of a financial corporation
exempt under the laws of California, and other than any holder of
a pawnbroker's license.
y.
MANAGER OF A SHOOTING GALLERY shall mean any person conducting, carrying
on or managing a range equipped with targets for practice with firearms.
z.
BILLBOARD ADVERTISER shall mean every person conducting, carrying
on or managing the business of bill posting or sign advertising, by
means of billboards or advertising signboards, fences, posts, buildings
or other structures, or advertising by means of posting, hanging or
otherwise affixing or displaying bills, signs or other advertisements
in or upon buses but shall not mean persons advertising their own
business, or to owners of real estate or their agents, advertising
their property for sale or lease, when posted upon the property advertised
for sale or lease.
aa.
HANDBILL ADVERTISER shall mean any person conducting, carrying on
or managing the business of advertising by means of distributing dodgers,
handbills, circulars, printed advertisements, cards, tickets, or advertising
samples of merchandise, not including, however, any merchant or employee
of the merchant distributing advertisements which advertise his, her,
or its own wares.
bb.
GENERAL ADVERTISER shall mean every person conducting, carrying on
or managing the business of writing, placing, designing or soliciting
advertisements for others.
cc.
HOUSE MOVER shall mean every person conducting, carrying on or managing
the business of housemoving along or over the public streets of the
City.
dd.
MERCHANDISE PEDDLER shall mean every person conducting, carrying
on or managing the business of traveling from place to place, and
selling or offering for sale any food, goods, wares, merchandise or
articles of personal property in his possession, if the offer for
sale occurs in or upon any public street, alley or other public place,
whether the actual sale of such commodities is made upon such premises
or elsewhere.
ee.
STOCK AND BOND PEDDLER shall mean every person conducting, carrying
on or managing the business of peddling, soliciting, or taking orders
for or selling stocks, bonds or securities, who does not maintain
a fixed place of business in the City.
ff.
SOLICITOR shall mean and include, but not be limited to, every person
conducting, carrying on or managing the business of going from house
to house, place to place, or in or along the streets, within the City,
taking orders for or offering to take orders for goods, wares, merchandise
or other things of value for future delivery, or for services to be
performed in the future.
gg.
BOOTBLACK shall mean every person conducting, carrying on or managing
the business of shining boots or shoes.
hh.
DANCE MANAGER shall mean every person conducting, carrying on or
managing the business of giving dances, where a charge is made for
admission, seats or the privilege of dancing.
ii.
JUNK DEALER shall mean every person conducting, carrying on or managing
the business of buying or collecting junk, furniture, bedding, carpets,
clothing, books, rags, iron, copper, brass, papers or other secondhand
goods.
jj.
MANAGER OF A BOXING OR WRESTLING MATCH shall mean every person conducting,
carrying on or managing a sparring exhibition or wrestling match.
kk.
MUSEUM MANAGER shall mean every person conducting, carrying on or
managing a museum where curiosities or objects of interest connected
with science, art or literature are exhibited or displayed, and a
fee is charged for admission.
ll.
ITINERANT DEALER shall mean every person, whether as principal or
agent, who engages in a temporary business in the City of buying,
selling or otherwise dealing in goods, wares or merchandise, with
the intention of continuing said business for a period of not more
than 90 days, and who for the purpose of carrying on such business,
hires, leases or occupies any room, building, structure or other location
for the purchase, exhibition or sale of such goods, wares or merchandise,
even if the person so engaged associates temporarily with any local
dealer, tradesman, merchant or auctioneer, or conducts such temporary
business in connection with, or as a part of, or in the name of, any
local dealer, tradesman, merchant or auctioneer.
mm.
PERSON TRANSPORTING PASSENGERS FOR HIRE shall mean:
1.
Every person conducting, carrying on or managing the business of
the transportation of passengers from a point within the City to a
point without the City, where a charge is made, or
2.
Every person conducting, carrying on or managing the business of
running or operating any automobile or motor-propelled vehicle for
the transportation of passengers or freight for hire, over a defined
route from a place or places of embarkation or loading within the
City to a destination outside the City, and which does not discharge
passengers or freight within the City, and whose vehicle does not
do local business as a jitney bus.
nn.
PAID PROMOTER shall mean every person, and each agent or representative
of such person, conducting, carrying on or managing, for any compensation
whatsoever, the business of selling tickets for, or promoting by advertising
or otherwise, any charitable, political, social or benevolent activity
within the City for which a paid admission is charged or collected.
oo.
PERSON MAINTAINING REGULAR DELIVERY ROUTES shall mean every person
who, without having a fixed place of business within the City, and
not being herein otherwise licensed or classified, maintains a distribution
system for the delivery of any goods, wares or merchandise (other
than newspapers to the subscribers thereof), and who makes three or
more deliveries a quarter in the City, but not including producers
of foodstuffs who offer their own products.
pp.
STOCK OR PRODUCE EXCHANGE shall mean a stock exchange or other company
engaged in buying or selling any stocks, bonds, notes, securities
or other commodities, including farm or ranch products.
qq.
WATER SUPPLIER shall mean every person conducting, carrying on or
managing the business of supplying the City or any of its inhabitants
with water.
rr.
COMMERCIAL PROMOTER shall mean every person or organization conducting,
promoting or organizing a commercial trade show or similar exhibition.
[Ord. #277, S2]
This section is enacted solely to raise revenue for municipal
purposes, and is not intended for regulation.
[Ord. #277, S3]
Persons required to pay a license tax for transacting and carrying
on any business under this section shall not be relieved from the
payment of any license tax for the privilege of doing such business
required under any other ordinance of the City, and shall remain subject
to the regulatory provisions of other ordinances.
[Ord. #277, S4, Ord. #90-5, S4]
There is hereby imposed a business license tax payable to the
collector by every person conducting, carrying on or managing for
gain any business, occupation, activity, trade, calling or profession
within the City of Firebaugh. It shall be unlawful for any person
to transact and carry on any business, occupation, activity, trade,
calling or profession in the City without first having procured a
license from the City so to do and paying the tax hereinafter prescribed
or without having complied with any and all applicable provisions
of this section.
This section shall not be construed to require any person to
obtain a license prior to doing business within the City if such requirement
conflicts with applicable statutes of the United States or of the
State of California. Persons not so required to obtain a license prior
to doing business within the City nevertheless shall be liable for
payment of the tax imposed by this section.
Every person conducting, carrying on or managing any business,
occupation, activity, trade, calling or profession, not specifically
licensed by other sections of this chapter, shall pay a license fee
based on the applicable gross receipts schedule set forth in the Master
Fee Resolution, whether retail, wholesale or both. License fees shall
be based upon the total sales and service from business transactions
within the City as recorded on the records of the business.
As used in this section the phrase 'business, occupation, activity,
trade, calling or profession' shall include, but not be limited to,
any person who is a professional, contractor, broker in securities
and commodities, manager of a public market, transient photographer,
manager of an auction sale, itinerant merchant, itinerant vendor of
goods, directory salesman, manager of a public entertainment, circus
manager, agricultural fair operator or manager, carnival manager,
exhibitor of feats of chance or skill, manager of a merry-go-round
or similar amusement, pawnbroker, supplier of financing, manager of
a shooting gallery, billboard advertiser, handbill advertiser, general
advertiser, house mover, merchandise peddler, stock and bond peddler,
solicitor, bootblack, dance manager, junk dealer, manager of a boxing
or wrestling match, museum manager, itinerant dealer, person transporting
passengers for hire, paid promoter, person maintaining regular delivery
routes, operator or manager of a stock or produce exchange, water
supplier, or commercial promoter.
[Ord. #277, S5; Ord. #90-5, SS5, 6]
Any person conducting two or more businesses, occupations, activities,
trades, callings or professions at the same location shall be required
to procure but one license, provided that the highest license fee
applicable to any of the included businesses shall be the fee applicable
to the licensee. The license shall specify the several businesses,
professions, or occupations for which the license is issued.
If any person conducts, carries on or manages two or more businesses, occupations, activities, trades, callings or professions at the same location and under the same management, the license fee to be paid as provided in subsection 4-2.29 shall be determined by and be based upon the gross receipts for sales and service received or derived from both or all such businesses, occupations, activities, trades, callings or professions so conducted, carried on, or managed.
If two or more businesses which would be subject to separate
provisions of this chapter are conducted, carried on or managed at
the same location, but under different management and control, the
collector may elect to avoid a multiplicity of licensing of each and
every individual business by entering into a written agreement with
the owner of the property upon which such businesses are located,
or with one or more of the persons operating any one or more of such
businesses, whereby such owner or other person or persons shall be
responsible for the collection and payment of the business license
fees applicable to all such businesses, in an amount to be determined
by the collector pursuant to this section and the Master Fee Resolution.
[Ord. #277, S6; Ord. #88-1, S1; Ord. #90-5, S7; Ord. #92-9,
S1]
When any person shall by use of signs, circulars, cards, telephone
books or newspapers, advertise, hold out, or represent that he, she,
or it conducts, carries on, or manages any business, occupation, activity,
trade, calling or profession in the City, or when any person holds
an active license or permit issued by a governmental agency indicating
that he, she, or it is so engaged in the City, and such person fails
to deny by a sworn statement given to the collector that he, she,
or it is not conducting, carrying on, or managing a business in the
City, after being requested to do so by the collector, then that fact
or those facts shall be considered prima facie evidence that he, she,
or it is conducting, carrying on, or managing a business, occupation,
activity, trade or profession in the City.
[Ord. #92-9, S1]
Any person traveling from place to place to sell or display
merchandise, goods, or food, without having a permanent business address
within the City limits, or otherwise do business from a temporary
structure or movable vehicle, is hereby required to obtain an itinerant
business license from the collector at the rate of $500 per vehicle
per each quarter of the fiscal year; provided, however, that no such
person without a permanent business address within the City limits
shall travel from place to place to sell or display merchandise, goods,
or food, or otherwise do business from a temporary structure or movable
vehicle, without annually presenting to the collector proof that each
such vehicle or temporary structure has obtained a health and sanitary
inspection tag from the Fresno County Health Department within nine
months prior to the itinerant business license renewal and has paid
all health department license fees.
[Ord. #92-9, S2; Ord. #00-06, S1; Ord. #09-02, S1]
a.
For purposes of this section, "itinerant restaurant" and "catering
truck" shall refer to vehicles, trucks, temporary structures, and
other movable objects from which food, refreshments, snacks, or meals,
hot or cold, are sold for consumption by the buyer.
c.
Itinerant restaurants and catering trucks operated within the City by persons having a permanent business address within the City limits shall be considered to be an itinerant business subject to the requirements of subsection 4-2.6.1 of this code, except that the fee owing pursuant to that section shall be $100 per fiscal year, plus a business license based on gross receipts for their listed permanent business address, and provided further that such person shall operate such itinerant restaurant or catering truck pursuant to the requirements of paragraph d of this section.
d.
Sales from itinerant restaurants and catering trucks operated within
the City, whether operated by persons having a permanent business
address within the City limits or by persons having no permanent business
address within the City limits, shall not be made except upon public
streets within the Central Trading (C-2) District, the General Commercial
(C-3) District, and the Light (M-1) and General (M-2) Manufacturing
Districts of the City.
e.
Itinerant restaurants and catering trucks shall not remain in any
one location longer than 60 consecutive minutes; provided such itinerant
restaurants and catering trucks shall not remain on vacant or private
lots within the City except where the owner thereof has filed with
the City a written statement of consent. The provisions of this paragraph
e shall not apply when the owner of the property is also the owner
of the catering truck or itinerant restaurant.
f.
Close of business for itinerant restaurants and catering trucks shall
be midnight.
[Ord. #277, S7]
None of the license taxes provided for by this section shall
be so applied as to occasion an undue burden upon interstate commerce
or be violative of the equal protection and due process clauses of
the Constitution of the United States and the State of California.
In any case where a license tax is believed by a licensee or
applicant for a license to place an undue burden upon interstate commerce
or be violative of such constitutional clauses, he may apply to the
collector for an adjustment of the tax. Such application may be made
before, at, or within six months after payment of the prescribed license
tax. The applicant shall, by sworn statement and supporting testimony,
show this method of business and the gross volume or estimated gross
volume of business and such other information as the collector may
deem necessary in order to determine the extent, if any, of such undue
burden or violation. The collector shall then conduct an investigation,
and, after having first obtained the written approval of the City
attorney, shall fix as the license tax for the applicant, an amount
that is reasonable and non-discriminatory, or if the license tax has
already been paid, shall order a refund of the amount over and above
the license tax so fixed. In fixing the license tax to be charged,
the collector shall have the power to base the license tax upon a
percentage of gross receipts or any other measure which will assure
that the license tax assessed shall be uniform with that assessed
on businesses of like nature, so long as the amount assessed does
not exceed the license tax as prescribed by this section. Should the
collector determine the gross receipts measure of license tax to be
the proper basis, he may require the applicant to submit, either at
the time of termination of applicant's business in the City, or at
the end of each three-month period, a sworn statement of the gross
receipts and pay the amount of license tax therefor, provided that
no additional license tax during any one calendar year shall be required
after the licensee shall have paid an amount equal to the annual license
tax as prescribed in this section.
[Ord. #277, S8]
Nothing in this section shall be deemed or construed to apply
to any person transacting and carrying on any business exempt by virtue
of the Constitution or applicable statutes of the United States or
of the State of California from payment of such taxes as are herein
prescribed.
Any person claiming an exemption pursuant to this section shall
file a sworn statement with the collector stating the facts upon which
exemption is claimed, and in the absence of such statement substantiating
the claim, such person shall be liable for the payment of the taxes
imposed by this section.
The collector shall, upon a proper showing contained in the
sworn statement, issue a license to such person claiming exemption
under this section without payment to the City of the license tax
required by this section.
The collector, after giving notice and a reasonable opportunity
for hearing to a licensee, may revoke any license granted pursuant
to the provisions of this section upon information that the licensee
is not entitled to the exemption as provided herein.
[Ord. #277, S9]
Every person required to have a license under the provisions
of this section shall make application as hereinafter prescribed for
the same to the collector of the City, and upon the payment of the
prescribed license tax the collector shall issue to such person a
license which shall contain the following information:
a.
The name of the person to whom the license is issued;
b.
The business licensed;
c.
The place where such business is to be transacted and carried on;
d.
The date of the expiration of such license; and
e.
Such other reasonable information as may be necessary for the enforcement
of the provisions of this section.
[Ord. #277, S10]
A person presently holding a valid business license issued by
the City for an existing business need not make an application for
first license as hereafter provided in this section.
However, upon a person making application for the first license
to be issued hereunder or for a newly established business, such person
shall furnish to the collector a sworn statement, upon a form provided
by the collector, setting forth the following information:
a.
The exact nature or kind of business for which a license is requested;
b.
The place where such business is to be carried on, and if the same
is not being carried on at any permanent place of business, the places
of residences of the owners of same;
c.
In the event that application is made for the issuance of a license
to a person doing business under a fictitious name, the application
shall set forth the names and places of residences of those owning
the business;
d.
In the event that the application is made for the issuance of a license
to a corporation or a partnership, the application shall set forth
the names and places of residences of the officers or partners thereof;
e.
Any further reasonable information which the collector may require
to enable him to issue the license.
[Ord. #277, S11]
In all cases, the collector may require the applicant for the renewal of a license to submit to the collector for his guidance in ascertaining the amount of the license tax to be paid by the applicant, a sworn statement, upon a form to be provided by the collector, setting forth the information required in subsection 4-2.10 a through d, or such information concerning the applicant's business during the preceding year as may be required by the collector to enable him to ascertain the amount of the license tax to be paid by the applicant pursuant to the provisions of this section.
[Ord. #277, S12]
No statements shall be conclusive as to the matters set forth
therein, nor shall the filing of the same preclude the City from collecting
by appropriate action such sum as is actually due and payable hereunder.
Such statement and each of the several items therein contained shall
be subject to audit and verification by the collector, his deputies,
or authorized employees of the City, who are hereby authorized to
examine, audit, and inspect such books and records of any licensee
or applicant for license, as may be necessary in their judgment to
verify or ascertain the amount of license fee due.
[Ord. #277, S13]
If any person fails to file any required statement within the
time prescribed, or if after demand therefor made by the collector
he fails to file a corrected statement, or if any person subject to
the tax imposed by this section fails to apply for a license, the
collector may determine the amount of license tax due from such person
by means of such information as he may be able to obtain.
If the collector is not satisfied with the information supplied
in statements or applications filed, he may determine the amount of
any license tax due by means of any information he may be able to
obtain.
If such determination is made, the collector shall given a notice
of the amount so assessed by serving it personally or by depositing
it in the United States Post Office at Firebaugh, California, postage
prepaid, addressed to the person so assessed at his last known address.
Such person, may, within 15 days after the mailing or serving of such
notice, make application in writing to the collector for a hearing
on the amount of the license tax. If such application is made, the
collector shall cause the matter to be set for hearing within 15 days
before the City Council. The collector shall give at least 10 days'
notice to such person of the time and place of hearing in the manner
prescribed above for serving notices of assessment. The Council shall
consider all evidence produced, and shall make findings thereon, which
shall be final. Notice of such findings shall be served upon the applicant
in the manner prescribed above for serving notices of assessment.
[Ord. #277, S14]
Any person aggrieved by any decision of the collector with respect
to the issuance or refusal to issue such license may appeal to the
Council by filing a notice of appeal with the Clerk of the Council.
The Council shall thereupon fix a time and place for hearing such
appeal. The Clerk of the Council shall give notice to such person
of the time and place of hearing by serving it personally or by depositing
it in the United States Post Office at Firebaugh, California, postage
prepaid, addressed to such person at his last known address. The Council
shall have authority to determine all questions raised on such appeal.
No such determination shall conflict with any substantive provision
of this section.
[Ord. #277, S15]
In addition to all other power conferred upon him, the collector
shall have the power, for good cause shown, to extend the time for
filing any required sworn statement or application for a period not
exceeding 30 days, and in such case to waive any penalty that would
otherwise have accrued, except that 10% simple interest may be added
to any tax determined to be payable.
[Ord. #277, S17]
No license issued pursuant to this section shall be transferable;
provided, that where a license is issued authorizing a person to transact
and carry on a business at a particular place, such licensee may upon
application therefor and paying a fee set by resolution of the City
Council, have the license amended to authorize the transacting and
carrying on of such business under the license at some other location
to which the business is or is to be moved; provided further that
transfer, whether by sale or otherwise, to another person under such
circumstances that the real or ultimate ownership after the transfer
is substantially similar to the ownership existing before the transfer,
shall not be prohibited by this section. For the purpose of this section
stockholders, bondholders, partnerships, or other persons holding
an interest in a corporation or other entity herein defined to be
a person are regarded as having the real or ultimate ownership of
such corporation or other entity.
[Ord. #277, S17]
A duplicate license may be issued by the collector to replace
any license previously issued hereunder which has been lost or destroyed
upon the licensee filing statement of such fact, and at the time of
filing such statement paying to the collector a duplicate license
fee of $5.
a.
Any licensee transacting and carrying on business at a fixed place
of business in the City shall keep the license posted in a conspicuous
place upon the premises where such business is carried on.
b.
Any licensee transacting and carrying on business but not operating
at a fixed place of business in the City shall keep the license upon
his person at all times while transacting and carrying on the business
for which it is issued.
[Ord. #277, S18]
[Ord. #277, S19]
For failure to pay a license tax when due, the collector shall
add a penalty of 10% of the license tax on the last day of each month
after the due date thereof, providing that the amount of such penalty
to be added shall in no event exceed 100% of the amount of the license
tax due. No license shall be issued, nor one which has been suspended
or revoked shall be reinstated or reissued, to any person, who at
the time of applying therefor, is indebted to the City for any delinquent
license taxes, unless such person, with the consent of the collector
enters into a written agreement with the City, through the collector,
to pay such delinquent taxes, plus 10% simple annual interest upon
the unpaid balance, in monthly installments, or oftener, extending
over a period of not to exceed one year.
In any agreement so entered into, such person shall acknowledge
the obligation owed to the City and agree that, in the event of failure
to make timely payment of any installment, the whole amount unpaid
shall become immediately due and payable and that his current license
shall be revocable by the collector upon 30 days' notice. In the event
legal action is brought by the City to enforce collection of any amount
included in the agreement, such person shall pay all costs of suit
incurred by the City or its assignee, including a reasonable attorney's
fee. The execution of such an agreement shall not prevent the prior
accrual of penalties on unpaid balances at the rate provided hereinabove,
but no penalties shall accrue on account of taxes included in the
agreement, after the execution of the agreement, and the payment of
the first installment and during such time as such person shall not
be in breach of the agreement.
[Ord. #277, S20; Ord. #90-5, S8]
The collector may make rules and regulations not inconsistent
with the provisions of this section as may be necessary or desirable
to aid in the enforcement of the provisions of this section.
[Ord. #277, S21; Ord. #90-5, S9]
a.
It shall be the duty of the collector, and he is hereby directed to enforce each and all of the provisions of this section two of Chapter 4, and the chief of police shall render such assistance in the enforcement hereof as may from time to time be required by the collector or the City Council.
The collector in the exercise of the duties imposed upon him
hereunder, and acting through his deputies or duly authorized assistants,
shall examine or cause to be examined all places of business in the
City to ascertain whether the provisions of this section have been
complied with.
The collector and each and all of his assistants and any police
officer shall have the power and authority (upon obtaining an inspection
warrant therefor, if necessary, from the presiding judge of the justice
or municipal court) to enter, free of charge, and at any reasonable
time, any place of business required to be licensed herein, and demand
an exhibition of its license. Any person having such license theretofore
issued, in his possession or under his control, who willfully fails
to exhibit the same on demand, shall be guilty of a misdemeanor and
subject to the penalties provided for by the provisions of this section.
It shall be the duty of the collector and each of his assistants to
cause a complaint to be filed against any and all persons found to
be violating any of these provisions.
b.
The revocation of a license for a business, trade, or profession
issued illegally, erroneously, mistakenly, without authority, under
mistake of fact, or in reliance on false information presented in
an application therefor, or procured through fraud, deceit, bad faith,
or misrepresentations of material fact, shall be by action of the
City manager. Such action by the City manager shall be initiated by
personal service on the licensee of a written revocation notice. The
revocation notice shall set forth in ordinary and concise language
the acts or omissions justifying the revocation, shall contain a statement
that the revocation shall be effective 48 hours after the time of
personal service on the licensee, and shall be signed by the City
manager. The notice shall also include the following statement:
'Unless a written request for review, signed by or on behalf
of the licensee named in this revocation notice, is delivered or mailed
to the City manager within 48 hours after the notice was personally
served on you, the license revocation shall be final for all purposes.
The delivery or mailing of a written request for review shall not
affect the revocation that becomes effective 48 hours after this revocation
notice is served upon you. You may, but need not, be represented by
counsel during the review, which shall be conducted by the City Council
at a time, date and place established by the City Council, notice
of which you will receive in the mail. The decision of the City Council
shall be final for all purposes.
[Ord. #277, S22]
The amount of any license tax and penalty imposed by the provisions
of this section shall be deemed a debt to the City. An action may
be commenced in the name of the City in any court of competent jurisdiction,
for the amount of any delinquent license tax and penalties.
[Ord. #277, S23]
All remedies prescribed hereunder shall be cumulative and the
use of one or more remedies by the City shall not bar the use of any
other remedy for the purpose of enforcing the provisions hereof.
[Ord. #277, S24]
Neither the adoption of this section nor its superseding of
any portion of any other ordinance of the City shall in any manner
be construed to effect prosecution for violation of any other ordinance
committed prior to the effective date hereof, nor be construed as
a waiver of any license or any penal provision applicable to any such
violation, nor be construed to affect the validity of any bond or
cash deposit required by any ordinance to be posted, filed, or deposited
and all rights and obligations thereunto appertaining shall continue
in full force and effect.
Where a license for revenue purposes has been issued to any
person by the City and the tax paid for the business for which the
license has been issued under the provisions of any ordinance heretofore
enacted and the term of such license has not expired, then the license
tax prescribed for that business by this section shall not be payable
until the expiration of the term of such unexpired license.
[Ord. #277, S25]
Any person violating any of the provisions of this section or knowingly or intentionally misrepresenting to any officer or employee of this City any material fact in procuring the license or permit herein provided for shall be deemed guilty of a misdemeanor, and upon conviction thereof, shall be liable to the penalty stated in Chapter 1, section 1-5.
[Ord. #277, S26; Ord. #90-5, S10]
Every person not having a fixed place of business within the
City, and not being herein otherwise licensed or classified, who delivers
goods, wares or merchandise of any kind by vehicle or who provides
any service by the use of vehicles in the City, shall pay a license
tax based on the applicable gross receipts schedule set forth in the
Master Fee Resolution, whether such deliveries of goods, wares or
merchandise be sold (as defined) on a retail basis or a wholesale
basis, or both.
[Ord. #277, S27]
Every person not having a fixed place of business within the City who engages in business within the City and is not subject to the provisions of subsection 4-2.26 shall pay a license tax at the same rate prescribed herein for persons engaged in the same type of business from, and having, a fixed place of business within the City.
[Ord. #277, S28; Ord. #90-5, S11]
Every person not herein classified or not herein required to be licensed who conducts, carries on, or manages any business, occupation, activity, trade, calling or profession in the City, or who holds an active license or permit issued by a governmental agency indicating that he, she, or it is so engaged in the City shall pay a license tax as provided in subsections 4-2.4 and 4-2.29.
[Ord. #277, S29; Ord. #90-5, S12]
Every person conducting, carrying on or managing for gain any
business, occupation, activity, trade, calling or profession within
the City of Firebaugh shall pay to the collector the business license
tax that shall be established from time to time by resolution of the
City Council in a Master Fee Resolution.
[Ord. #82-4, S2]
Every person carrying on the business of a video arcade shall
have for each unit a separate license or permit and shall pay an annual
per unit fee as established by Council resolution. A unit is one coin
operated video game. Such fee is in addition to the basic business
license fee applicable to the business of video arcade. Such unit
fee is applicable to each unit whether in use for all or only a portion
of the business license period. Units added during a business license
period shall not be operated until such additional fee is paid.
[Ord. #90-5, S13]
For the purpose of this section, that portion of the receipts
of a general contractor which represents payments to other state licensed
contractors shall be excluded from his gross receipts for sales and
service, provided that the other state licensed contractor has or
is required to have a contractor's business tax certificate and that
the contractor has furnished the collector with an acceptable listing
of the names and addresses of the other contractor(s), the contractor
number of each and the total amount(s) paid to each. An acceptable
listing is defined as one which is typed and complete and which contains
only exclusions allowed by this subsection.
The purpose of this section is to regulate public dances within
the City limits.
[Ord. #92-3, S1]
Any person, persons or organizations of any kind whatsoever
who desire to hold a public dance within the City must first obtain
a license therefor from the City Clerk. "Person, persons or organizations"
shall not include charitable, civic or religious organizations.
[Ord. #253, S3]
The license shall state on its face the location of the premises
where the dance is to be held, the date or dates on which the dance
is to be held, the hours during which the dance will be held, and
the name and address of the person, persons, or organizations so licensed.
Before the license shall be issued the proposed licensee shall
pay to the City of Firebaugh in cash, certified check, cashier's check,
or money order, a certain sum of money that is declared by the chief
of police to be that sum necessary for him to hire for the City of
Firebaugh a peace officer duly deputized by the City of Firebaugh,
who, in the reasonable discretion of the chief of police is qualified
to attend the licensed premises during the hours of the dance and
to keep the peace therein.
[Ord. #253, S5]
Any proposed licensee who owns or operates a bar or tavern business that is duly licensed by the Alcoholic Beverage Control Board of the State of California, and by the City of Firebaugh, and which business is open for regular business hours five or more days in each week, and who wishes to hold a dance therein, shall be exempted from that portion of subsection 4-3.4 that requires an advance deposit for the fee of the peace officer, but such licensee shall, however, pay for the services of the peace officer for the services required by subsection 4-3.4.
[Ord. #253, S6]
If the proposed licensee is that class of persons described in subsection 4-3.5 and proposes to hold the dance in the location described in subsection 4-3.5, then the proposed licensee shall pay a license fee in advance in cash certified check, cashier's check, or money order in an amount established by resolution of the City Council and this license shall be valid for one fiscal year of the City of Firebaugh. All other proposed licensees shall pay in advance in cash, cashier's check, certified check, or money order, in an amount established by resolution of the City Council for a license that shall be valid for only one occasion.
[Ord. #253, S7 and 8]
The violation of any provision of this section is declared to be a misdemeanor and upon conviction thereof shall be liable to the penalty in Chapter 1, section 1-5.
Any licensee arrested for a violation of this section shall
immediately have his license temporarily suspended until the conclusion
of the legal proceedings caused by the arrest. If the legal proceedings
are terminated in favor of the licensee, then the license shall be
immediately reinstated. However, upon a first conviction the licensee
shall have his license suspended for six months. Upon a second conviction
the license shall be permanently revoked.
[Ord. #82-4, S2]
The purpose and intent of this section is to set forth those
certain businesses and commercial activities that, because of their
very nature and to avoid potential problems, must be regulated for
the general health, safety and welfare of the public.
[Ord. #82-4, S2]
As used in this section:
a.
VIDEO ARCADE – shall mean any place open to the public where
four or more coin operated electronic video games are kept or maintained
and persons are permitted to use such games. 75% of the public area
may be devoted to video games. 25% of the public area may be devoted
to entertainment related activities.
b.
COIN OPERATED VIDEO GAME – shall mean any electronic device
the use or operation of which is controlled, permitted, or made available
by placing therein any coin, plug, disc, key, or token, and which
is intended for a user's amusement or skill.
c.
AWARDING AUTHORITY– shall mean that person or body that has
the authority to issue permits. Unless otherwise delegated the City
Council of the City of Firebaugh shall be the awarding authority herein.
[Ord. #82-4, S2]
No business or activity specified in this section may be conducted
or operated within the City without first securing and maintaining
a permit for same as set forth herein.
This permit requirement is in addition to any business license
that may be required and the issuance of such business license does
not entitle the holder to conduct such business without a permit.
Said permits are non-transferable.
[Ord. #82-4, S2]
An application shall be made to the City with all fees setting
forth all information required enabling the City staff to investigate
and advise the awarding authority as to the suitability for issuance
of a permit.
[Ord. #82-4, S2]
A fee for processing each permit shall accompany the application.
Fees shall be established from time to time and shall be set by City
Council resolution.
[Ord. #82-4, S2]
Upon completing its investigation and report the staff shall
set the matter for a hearing before the awarding authority giving
the applicant at least five days' notice thereof.
If the awarding authority is the City Council, said hearing
must be at a regular meeting unless otherwise specially noticed and
set. In all other cases the hearing may be held at a date, time and
place as noticed, subject to approval or review by the City Council.
[Ord. #82-4, S2]
The awarding authority may grant, deny or conditionally grant a permit based upon findings as determined at said hearing and the standards set forth for each such permit, including but not limited to those standards set forth in subsection 4-4.11.
Reasonable conditions may be imposed upon the permittee in the
use of said permit.
[Ord. #82-4, S2]
The issuance of a permit hereunder does not authorize or exempt
the permittee from complying with all other provisions of this Code
and other laws applicable.
[Ord. #82-4, S2]
a.
Any permit may be revoked after due notice and hearing for violations
of this Code, conditions imposed thereon or other applicable laws.
b.
Permittee shall be given not less than five days' written notice
of the intent to revoke and set a hearing before the awarding authority.
c.
The hearing shall be conducted in public with all interested parties
being heard and findings and decision of the awarding authority made.
Ordinary rules of evidence and procedure shall not apply.
d.
If the awarding authority is the City Council or they have heard
the matter upon appeal or review, their decision shall be final subject
only to judicial review within 90 days from the date thereof.
All other decisions are subject to appeal or review by the City
Council within 15 days of it's making.
[Ord. #82-4, S2]
No coin operated video game shall be placed, operated or used
within the City except in an amusement arcade having a valid permit.
[Ord. #83-4, S2]
a.
Location. Any such video arcade shall be located in a manner consistent
with applicable zoning requirements.
b.
Parking. Any such video arcade shall have sufficient parking as determined
by the zoning or fire code requirements, whichever is greater.
c.
Lighting. Video arcades shall have sufficient lighting, inside and
out, as determined by the chief of police.
d.
Managers. Such video arcades shall have a manager, 21 years old or
older, on duty on the premises during all hours of operation.
e.
Hours of operation. Hours of operation shall be set by Council resolution.
f.
Maintain premises. The permittee, his agents or employees shall maintain
the video arcade premises in a neat and clean condition and not permit
disorderly or intoxicated persons to enter or remain there during
hours of operation.
g.
Fees. Permittee shall pay all fees when due.
h.
Alcohol. No alcoholic beverages shall be permitted on the arcade
premises.
i.
Access. The permittee, manager, and all employees shall be responsible
for maintaining a clean and clear walkway in front of every video
arcade.
j.
Visibility. Adequate visibility of the entire arcade from the outside
shall be provided; visibility shall in no way be obstructed.
[Ord. #82-4, S2]
Every video arcade permitted hereunder shall pay a business license tax including but not limited to the per unit fee set forth in this Code in subsection 4-2.30.
[Ord. #09-06, S1; amended 6-7-2021 by Ord. No. 21-03]
The City Council finds and determines that:
The City Council finds and determines that:
a.
State law prohibits the sale or furnishing of cigarettes, tobacco
products, and smoking paraphernalia to minors, as well as the purchase,
receipt, or possession of tobacco products by persons under 21 years
of age (Penal Code 308).
b.
State law requires that tobacco retailers check the identification
of tobacco purchasers who reasonably appear to be under 21 years of
age (Business & Professions Code 22956) and provides procedures
for using persons under 21 years of age to conduct on-site compliance
checks of tobacco retailers (Business & Professions Code 22952).
c.
State law requires that tobacco retailers post a conspicuous notice
at each point of sale, stating that selling tobacco products to anyone
under 21 years of age is illegal (Business & Professions Code
22952, Penal Code 308).
d.
State law prohibits the sale or display of cigarettes through a self-service
display and prohibits public access to cigarettes without the assistance
of a Clerk (Business & Professions Code 22962).
e.
State law prohibits the sale of bidis (hand rolled filterless cigarettes
imported primarily from India and Southeast Asian countries) except
at those businesses that prohibit the presence of minors (Penal Code
308.1).
f.
State law prohibits the manufacture, distribution, or sale of cigarettes
in packages of less than twenty (20) and prohibits the manufacture,
distribution, or sale of "roll-your-own" tobacco in packages containing
less than 0.6 of an ounce of tobacco (Penal Code 308.3).
g.
State law prohibits public school students from smoking or using
tobacco products while on campus, while attending school-sponsored
activities, or while under the supervision or control of school district
employees (Education Code 48901(a)).
h.
88% of adults who have ever smoked tried their first cigarette by
the age of 18, and the average age at which smokers try their first
cigarette is 14 1/2.
i.
The City of Firebaugh has a substantial interest in promoting compliance
with Federal, State, and local laws intended to regulate tobacco sales
and use; in discouraging the illegal purchase of tobacco products
by minors; in promoting compliance with laws prohibiting sales of
cigarettes and tobacco products to minors; in addressing the public
health concerns related to tobacco use by minors; and in protecting
children from being lured into illegal activity through the misconduct
of adults.
j.
California courts in Cohen v. Board of Supervisors, 40 Cal. 3d 277 (1985), and Bravo Vending v. City of Rancho
Mirage, 16 Cal. App. 4th 383 (1993), have affirmed the power
of local jurisdictions to regulate business activity in order to discourage
violations of law.
k.
State law authorizes local tobacco retailer licensing laws to provide
for the suspension or revocation of the local tobacco retailer license
for any violation of a State tobacco control law (Business & Professions
Code 22971.3).
l.
A requirement for a tobacco retailer license will not unduly burden
legitimate business activities of retailers who sell or distribute
cigarettes or other tobacco products to persons 21 years of age or
older. It will, however, allow the City to regulate the operation
of lawful businesses to discourage violations of Federal, State, and
local tobacco-related laws.
[Ord. #09-06, S1]
The purpose of this section is to encourage responsible tobacco
retailing and to discourage violations of all tobacco-related laws,
especially those that prohibit or discourage the sale or distribution
of tobacco product to minors, but not to expand or reduce the degree
to which the acts regulated by Federal or State law are criminally
proscribed or to alter the penalty provided for violations.
[Ord. #09-06, S1; amended 5-20-2019 by Ord. No. 19-02; 6-7-2021 by Ord. No. 21-03]
The following words and phrases, whenever used in this section,
shall have the meanings defined in this subsection unless the context
clearly requires otherwise:
a.
ARM'S LENGTH TRANSACTION — shall mean a sale in good faith
and for valuable consideration that reflects the fair market value
in the open market between two informed and willing parties, neither
of which is under any compulsion to participate in the transaction.
A sale between relatives, related companies or partners, or a sale
for which a significant purpose is avoiding the effect of the violations
of this section is not an arm's length transaction.
b.
CITY MANAGER — shall mean the City Manager of the City of Firebaugh
or his or her designee.
c.
DEPARTMENT — shall mean the Firebaugh Police Department.
d.
DRUG PARAPHERNALIA — shall have the definition set forth in
California Health and Safety Code Section 11014.5, as that section
may be amended from time to time.
e.
PROPRIETOR — shall mean a person with an ownership or managerial
interest in a business. An ownership interest shall be deemed to exist
when a person has a 10% or greater interest in the stock, assets,
or income of a business other than the sole interest of security for
debt. A managerial interest shall be deemed to exist when a person
can or does have or shares ultimate control over the day-to-day operations
of a business.
f.
SELF-SERVICE DISPLAY — shall mean the open display of tobacco
products or tobacco paraphernalia in a manner that is accessible to
the general public without the assistance of the retailer or employee
of the retailer. A vending machine is a form of self-service display.
g.
TOBACCO PARAPHERNALIA — shall mean any item designed or marketed
for the consumption, use, or preparation of tobacco products, including,
but not limited to, cigarette papers or wrappers, pipes, holders of
smoking materials of all types, cigarette rolling machines, and any
other item designed for the smoking, preparation, storing, or consumption
of tobacco products.
h.
TOBACCO PRODUCT — shall mean: 1) any product containing, made
or derived from tobacco or nicotine that is intended for human consumption,
whether smoked, heated, chewed, absorbed, dissolved, inhaled, snorted,
sniffed or ingested by any other means, including, but not limited
to, cigarettes, cigars, little cigars, pipe tobacco, hookah tobacco,
snuff, chewing tobacco, dipping tobacco, bidis, or any other preparation
of tobacco; 2) any product or formulation of matter containing biologically
active amounts of nicotine that is manufactured, sold, offered for
sale, or otherwise distributed with the expectation that the product
or matter will be introduced into the human body; and 3) any electronic
device that delivers nicotine or other substances to the person inhaling
from the device, including, but not limited to, an electronic cigarette,
electronic cigar, electronic pipe, or electronic hookah. "Tobacco
product" does not include any product specifically approved by the
United States Food and Drug Administration for sale as a tobacco cessation
product or for other therapeutic purposes where such product is marketed
and sold solely for such an approved purpose.
i.
TOBACCO RETAILER — shall mean any person who sells, offers
for sale, or exchanges or offers to exchange, for any form of consideration,
tobacco, tobacco products, or tobacco paraphernalia, or who distributes
free or low cost samples of tobacco products or tobacco paraphernalia.
j.
TOBACCO RETAILING — shall mean selling, offering for sale,
exchanging, or offering to exchange for any form of consideration
tobacco, tobacco products, or tobacco paraphernalia without regard
to the quantity sold, offered for sale, exchanged, or offered for
exchange.
k.
TOBACCO STORE — shall mean a retail business that meets all
of the following requirements: primarily sells tobacco products, generates
more than 60% of its gross revenues annually from the sale of tobacco
products and tobacco paraphernalia, does not sell alcoholic beverages
or food for consumption on the premises, and does not permit any person
under 18 years of age to be present or enter the premises at any time.
[Ord. #09-06, S1; amended 6-7-2021 by Ord. No. 21-03]
a.
It shall be unlawful for any person to act as a tobacco retailer
(i.e., sell or offer to sell tobacco products) without first obtaining
and maintaining a valid tobacco retailer's license pursuant to this
section for each location at which that activity is to occur. Tobacco
retailing without a valid tobacco retailer's license is a public nuisance.
b.
A tobacco retailer or proprietor without a valid tobacco retailer
license, including without limitation a person whose license has been
revoked:
1.
Shall keep all tobacco products and tobacco paraphernalia out of
public view. The public display of tobacco products or tobacco paraphernalia
in violation of this provision shall constitute tobacco retailing
without a license and shall be subject to the penalties provided herein.
2.
Shall not display any advertisement relating to tobacco products
or tobacco paraphernalia that promotes the sale or distribution of
such products from the tobacco retailer's location or that could lead
a reasonable consumer to believe that such products can be obtained
at that location.
c.
Nothing in this section shall be construed to grant any person obtaining
and maintaining a tobacco retailer's license any status or right other
than the right to act as a tobacco retailer at the location in the
City identified on the face of the license.
[Ord. #09-06, S1]
a.
In addition to any other penalty authorized by law, if the City manager
or any court of competent jurisdiction determines after notice and
an opportunity to be heard, that any person has engaged in tobacco
retailing at a location without a valid tobacco retailer's license,
either directly or through the person's agents or employees, the person
shall be ineligible to apply for or be issued a tobacco retailing
license for that location as follows:
1.
After a first violation of this section at a location within any
five-year period, no new license may be issued for the person at the
location until 30 days have passed from the date of the violation.
2.
After a second violation of this section at a location within any
five-year period, no new license may be issued for the person at the
location until 90 days have passed from the date of the violation.
3.
After a third or subsequent violation of this section at a location
within any five-year period, no new license may be issued for the
person at the location until five years have passed from the date
of the violation.
[Ord. #09-06, S1; amended 6-7-2021 by Ord. No. 21-03]
a.
No license will be issued to authorize tobacco retailing at other
than a fixed location.
b.
No license will be issued for itinerant tobacco retailing or tobacco
retailing from vehicles.
c.
The number of tobacco retailer licenses issued within the City shall
not exceed fourteen (14). City Staff shall assess the limit on tobacco
retailer licenses every two years to evaluate whether to recommend
to the City Council an amendment to this section to change the number
of permitted licenses as reasonably necessary to advance the public
health and law enforcement purposes this section seeks to achieve.
d.
No tobacco retailer license shall be issued for the sale of tobacco
products within 250 feet of any school, public park, or playground,
as measured by a straight line from the nearest point of the property
line of the parcel on which the business is located, to the nearest
point on which a school, public park, or playground is located.
[Ord. #09-06, S1]
a.
All applications for a license shall be submitted to the City manager
in the name of each proprietor proposing to conduct tobacco retailing
and shall be signed by each proprietor or an authorized agent thereof.
A proprietor proposing to conduct tobacco retailing at more than one
location shall submit a separate application for each location. All
applications shall be submitted on a form supplied by the City manager
and shall contain the following information:
1.
The name, address, and telephone number of each proprietor;
2.
The business name, address, and telephone number of the fixed location
for which a license is sought;
3.
Whether or not any proprietor has previously been issued a license
pursuant to this section that is, or was at any time, revoked and,
if so, the date of revocation; and
4.
A statement signed by each proprietor that no drug paraphernalia
is or will be sold at the location for which the license is sought.
5.
Such other information as the department deems necessary for the
administration or enforcement of this section.
b.
All information required to be submitted in order to apply for a
tobacco retailer's license shall be updated with the department whenever
the information changes. A tobacco retailer shall provide the City
manager in writing with any updates within 10 business days of a change.
c.
Applications submitted pursuant to this section shall be deemed public
records.
[Ord. #09-06, S1; amended 6-7-2021 by Ord. No. 21-03]
a.
Upon the receipt of an application for a license and the applicable
license fee, the City manager shall issue a license unless:
1.
The application is incomplete or inaccurate;
2.
The application seeks authorization for tobacco retailing at an address
that appears on a license that has been revoked, or is subject to
revocation proceedings for violation of any of the provisions of this
section; provided, however, this subparagraph shall not constitute
a basis for denial of a license if either or both of the following
apply:
3.
The application seeks authorization for tobacco retailing that is
unlawful or unauthorized pursuant to this Code, including applicable
zoning regulations, or that is unlawful or unauthorized pursuant to
any other local, State, or Federal law;
4.
The City has information that the applicant or his or her agents
or employees have violated any local, State, or Federal tobacco control
law at the location for which the license or renewal of the license
is sought within the preceding thirty-day (30) periods; or
b.
A license shall be valid for one year and must be renewed not later than 30 days prior to the expiration of the license, but no earlier than 60 days prior to the expiration of the license. Unless revoked on an earlier date, all licenses shall expire one year after the date of issuance. A license may be renewed for additional periods of one year by submitting an application to the department and payment of the applicable license fee; provided, however, a license that has been revoked, or is subject to revocation proceedings, shall not be renewed. The application and license fee shall be submitted at least 30 days, but not more than 60 days, prior to the expiration of the current valid license. The applicant shall follow all of the procedures and provide all of the information required by subsection 4-5.7.
c.
Where the City manager does not approve a license or renewal of a
license, the City manager shall notify the applicant of the specific
grounds for the denial in writing. The notice of denial shall be served
personally or by mail not later than five working days after the date
of the denial. If by mail, the notice shall be placed in a sealed
envelope, with postage paid, and shall be addressed to the applicant
at the address as it appears on the application. The giving of notice
shall be deemed complete at the time of deposit of the notice in the
mail or at the time of personal service. Personal service to a corporation
may be made by delivery of the notice to any person designated in
the Code of Civil Procedure to be served for the corporation with
summons and complaint in a civil action.
[Ord. #09-06, S1]
Each license shall be prominently displayed in a publicly visible
location at the licensed premises.
[Ord. #09-06, S1; amended 6-7-2021 by Ord. No. 21-03]
The fee to issue or to renew a tobacco retailer's license shall
be established by resolution of the City Council. The fee shall be
calculated so as to recover the total cost of both license administration
and license enforcement, including, for example, issuing the license,
administering the license program, retailer education, retailer inspection
and compliance checks, documentation of violations, and prosecution
of violators, but shall not exceed the total cost of the program.
All fees shall be used to fund the program. Fees are nonrefundable
except as may be required by law.
[Ord. #09-06, S1; amended 6-7-2021 by Ord. No. 21-03]
a.
A tobacco retailer's license that is not timely renewed shall expire
at the end of its term. To reinstate a license that has expired, or
to renew a license not timely renewed, the proprietor must:
1.
Submit the full license fee amount that is due, plus a reinstatement
fee equal to the full license fee amount; and
[Ord. #09-06, S1]
a.
A tobacco retailer's license may not be transferred from one person
to another or from one location to another. Any attempt to do so shall
constitute a violation of this section. Whenever a tobacco retailing
location has a change in proprietors, a new tobacco retailer's license
is required.
b.
Notwithstanding any other provision of this section, prior violations
at a location shall continue to be counted against a location and
license ineligibility periods shall continue to apply to a location
unless:
[Ord. #09-06, S1; amended 6-7-2021 by Ord. No. 21-03]
a.
No person engaged in tobacco retailing shall sell or transfer a tobacco
product or tobacco paraphernalia to another person who appears to
be under the age of 21 without first examining the identification
of the recipient to confirm that the recipient is at least the minimum
age under State law to purchase and possess the tobacco product or
tobacco paraphernalia.
b.
No person who is younger than the minimum age established by State
law for the purchase or possession of tobacco products shall engage
in tobacco retailing.
c.
No tobacco retailer shall display tobacco products or tobacco paraphernalia
by means of a self-service display or engage in tobacco retailing
by means of a self-service display.
d.
No tobacco retailer shall sell or transfer a tobacco product or tobacco
paraphernalia to a person who is younger than the minimum age established
by State Law.
e.
It shall be a violation of a tobacco retailer's license for a licensee
or his or her agent or employee to violate any provision of this section
or any other local, State, or Federal tobacco-related law.
[Ord. #09-06, S1]
a.
Compliance with this section shall be monitored by the police department.
Any peace officer may enforce the provisions of this section.
b.
Each tobacco retailer may be monitored for compliance.
c.
Compliance checks shall determine, at a minimum, if the tobacco retailer
is conducting business in a manner that complies with tobacco laws
regulating youth access to tobacco. When appropriate, the compliance
checks shall determine compliance with other laws applicable to tobacco
retailing.
d.
The City shall not enforce any law establishing a minimum age for
tobacco purchases or possession against a person who otherwise might
be in violation of such law because of the person's age (hereinafter
"youth decoy") if the potential violation occurs when the youth decoy
is participating in a compliance check which is supervised by a peace
officer of the City or participating in a compliance check funded
directly or indirectly by any State or local agency, organization,
or department.
[Ord. #09-06, S1; amended 6-7-2021 by Ord. No. 21-03]
a.
In addition to any other penalty provided by law, a tobacco retailer's
license shall be revoked if the City manager finds, or any court of
competent jurisdiction determines, after the licensee is afforded
notice and an opportunity to be heard, that the licensee, or any of
the licensee's agents or employees, have violated any of the requirements,
conditions, or prohibitions of this section or in a different legal
proceeding has pleaded guilty, "no contest" or its equivalent, or
admitted to a violation of this section.
b.
The City manager may allow a tobacco retailer alleged to have violated
this section to stipulate to the penalties provided in this subsection
in lieu of the penalties that would otherwise apply under this section
and to forego a hearing on the allegations. Stipulations shall not
be confidential and shall contain the following terms plus any other
noncriminal provisions established by the City manager in the interests
of justice:
[Ord. #09-06, S1]
a.
After revocation for a first violation of this section at a location
within any five-year period, no new license may be issued for the
location until 10 days have passed from the date of revocation.
b.
After revocation for a second violation of this section at a location
within any five-year period, no new license may be issued for the
location until 30 days have passed from the date of revocation. If
the violation occurs within 12 months of the first violation, the
tobacco retailer shall be subject to an administrative fine of $250.
c.
After revocation for a third violation of this section at a location
within any five-year period, no new license may be issued for the
location until 90 days have passed from the date of revocation. If
the violation occurs within 12 months of the second violation, the
tobacco retailer shall be subject to an administrative fine of $500.
d.
After revocation for four or more violations of this section at a
location within any five-year period, no new license may be issued
for the location until five years have passed from the date of revocation.
In addition, the tobacco retailer shall be subject to an administrative
fine of $1,000.
[Ord. #09-06, S1]
A tobacco retailer's license shall be revoked if the City manager
finds, after notice and opportunity to be heard, that one or more
of the bases for denial of a license existed at the time application
was made, or at any time before the license was issued. The revocation
shall be without prejudice to the filing of a new application for
a license.
[Ord. #09-06, S1]
a.
Notice of Denial or Violation. A notice of denial or a notice of
violation and of intent to revoke a license or impose a fine shall
be personally served on or sent by certified mail to the person or
persons subject to the revocation or fine. The address supplied pursuant
to a tobacco retailer license application shall be deemed an appropriate
address to provide such notice to any proprietor listed on the application.
The notice shall state the basis of the City manager's determinations
and include an advisement of the right to request a hearing to contest
the revocation or the fine. Any request for a hearing must be in writing
and must be received by the City manager within 10 calendar days of
personal service of the notice on the person or persons subject to
a revocation or a fine or within 15 calendar days if the person or
persons subject to a revocation or a fine are served by mail.
b.
License Revocation and Imposition of Fine. If no request for a hearing
is timely received, the City manager's denial of the application for
license or determination on the violation and the imposition of a
revocation or a fine shall be final. Revocation shall be effective
as of the date specified in the notice, and payment of any fine shall
be made within 30 calendar days of written demand made in the manner
specified above for a notice of violation. If the fine is not paid
within that time, the fine may be collected along with interest at
the legal rate in any manner provided by law. In the event that a
judicial action is necessary to compel payment of the fine and accumulated
interest, the person or persons subject to the fine shall also be
liable for the costs of the suit and attorneys' fees incurred by the
City in collecting the fine.
c.
Notice of Hearing. If a hearing is requested pursuant to paragraph
a of this subsection, the City manager shall provide written notice
within 45 calendar days of its receipt of the hearing request to the
person or persons subject to a revocation or a fine of the date, time,
and place of the hearing in the manner specified above for a notice
of violation. The hearing officer shall be the City manager or his/her
designee.
d.
Hearing Decision. The hearing officer shall render a written decision
and findings within 20 working days of the hearing. Copies of the
decision and findings shall be provided to the person or persons subject
to a revocation or a fine in the manner specified above for a notice
of violation.
e.
Finality of the Hearing Officer's Decision. The decision of the hearing
officer shall be the final decision of the City.
f.
Appeal to Superior Court of Limited Jurisdiction. Within 20 days
after personal service of the hearing officer's decision and findings
or within 25 days if served by mail, any person subject to a revocation
or a fine may seek review of the hearing officer's decision and findings
by the superior court of limited jurisdiction. A copy of the notice
of appeal to the superior court shall be timely served in person or
by first class mail upon the City manager by the contestant. The appeal
shall be heard de novo except that the contents of the City's file
in the case shall be received in evidence. A copy of the City's records
of the notices of the violation and of the hearing officer's decision
and findings shall be admitted into evidence as prima facie evidence
of the facts stated therein.
[Ord. #09-06, S1]
It shall be a violation of this section for any licensee or
any of the licensee's agents or employees, to violate any local, State,
or Federal law regulating controlled substances or drug paraphernalia,
as defined in section 11364.5 of the Health and Safety Code, such
as, for example, California Health and Safety Code section 11364.7,
except that a violation of Federal law relating to the use of medical
marijuana shall not be a violation of this section if the conduct
at issue is authorized pursuant to California Health and Safety Code
sections 11362.7 et seq.
[Ord. #09-06, S1; amended 6-7-2021 by Ord. No. 21-03]
a.
The remedies provided by this section are cumulative and in addition to any other remedies available at law or in equity including the provisions of Municipal Code Chapter 4.
b.
Causing, permitting, aiding, abetting, or concealing a violation
of any provision of this Article shall constitute a violation.
c.
Any person violating any section of this Article is subject to the
payment of civil penalties of up to $1,000 for each violation, unless
otherwise specifically provided for therein. Any continuing violation
shall constitute a separate offense for each day of the violation.
d.
Violation of any portion of this section shall be considered a misdemeanor,
and is hereby declared to be a public nuisance.
e.
Violations of this section are hereby declared to be unfair business
practices and are presumed to at least nominally damage each and every
resident of the community in which the business operates.
f.
In addition to other remedies provided by this section or by other
law, any violation of this section may be remedied by a civil action
brought by the City including administrative or judicial nuisance
abatement proceedings, civil or criminal code enforcement proceedings,
and suits for injunctive relief.
g.
Whenever evidence of a violation of this section is obtained in any
part through the participation of a person under the age of 18 years
old, such a person shall not be required to appear or give testimony
in any civil or administrative process brought to enforce this section
and the alleged violation shall be adjudicated based upon the sufficiency
and persuasiveness of the evidence presented.
[Ord. #09-06, S1; amended 6-7-2021 by Ord. No. 21-03]
If any subsection, subdivision, paragraph, sentence, clause
or phrase hereinafter part of this section or its application to any
person or circumstance is for any reason held to be invalid or unenforceable,
such invalidity or unenforceability shall not affect the validity
or enforceability of the remaining subsections, subdivisions, paragraphs,
sentences, clauses, or phrases parts of this section or its application
to any other person or circumstance. The City Council hereby declares
that it would have adopted each part hereof irrespective of the fact
that anyone or more other parts hereof be declared invalid or unenforceable.
