[Ord. No. 21-Code-828,
§ 1]
Pursuant to Section 31b of the New Jersey Cannabis Regulatory,
Enforcement Assistance and Marketplace Modernization Act (P.L. 2021,
c. 16), all cannabis establishments, cannabis distributors or cannabis
delivery services are hereby prohibited from operating anywhere in
the Borough of Oakland, except for the delivery of lawful cannabis
items and related supplies by a delivery service to residents of the
Borough of Oakland only.
Editor's Note: For exceptions to the cannabis prohibitions, see Chapter 59, Land Use and Zoning.
[Added 12-20-2021 by Ord. No. 21-Code-873]
a.
There
is hereby imposed a transfer tax of 2% on receipts from the sale of
Adult-Use Cannabis and cannabis items by those Cannabis Establishments
located within the Borough possessing a Class 1 Cannabis Cultivator
license, a Class 2 Cannabis Manufacturer license, a Class 4 Cannabis
Distributer license, and a Class 5 Cannabis Retailer license.
b.
There
is hereby imposed a transfer tax of 1% on receipts from the sale of
Adult-Use Cannabis and cannabis items by those Cannabis Establishments
located within the Borough possessing a Class 3 Cannabis Wholesaler
license.
c.
Such
tax shall be collected or paid and remitted to the Borough by the
Cannabis Establishment purchasing or receiving the cannabis or cannabis
item, or from the consumer at the point of sale, on behalf of the
Borough by the cannabis retailer selling the cannabis item to that
consumer.
d.
The
transfer tax shall be stated, charged, and shown separately on any
sales slip, invoice, receipt, or other statement or memorandum of
the price paid or payable, or equivalent value of the transfer, for
the cannabis or cannabis item. No Cannabis Establishments required
to collect a transfer tax imposed hereunder shall advertise or hold
out to any person or to the public in general, in any manner, directly
or indirectly, that the transfer tax or user tax will not be separately
charged and stated to another Cannabis Establishments or the consumer,
or that the transfer tax will be refunded to the Cannabis Establishments
or the consumer.
[Added 12-20-2021 by Ord.
No. 21-Code-873]
Every Cannabis Establishment required to collect a transfer
tax imposed by ordinance pursuant to this section shall be personally
liable for the transfer tax or user tax imposed, collected, or required
to be collected under this section. Any Cannabis Establishment shall
have the same right with respect to collecting the transfer tax from
another Cannabis Establishment or the consumer as if the transfer
tax was a part of the sale and payable at the same time, or with respect
to non-payment of the transfer tax or user tax by the Cannabis Establishment
or consumer, as if the transfer tax was a part of the purchase price
of the cannabis or cannabis item, or equivalent value of the transfer
of the cannabis or cannabis item, and payable at the same time.
[Added 12-20-2021 by Ord.
No. 21-Code-873]
a.
All revenues collected from a transfer tax imposed by ordinance pursuant
to this section shall be remitted to the Borough's Chief Financial
Officer in the manner prescribed herein. The Chief Financial Officer
shall collect and administer any transfer tax imposed by ordinance
pursuant to this chapter.
b.
The Borough may enforce the payment of delinquent taxes or transfer
fees imposed by ordinance pursuant to this section in the same manner
as provided for municipal real property taxes. In the event that the
transfer tax imposed by ordinance pursuant to this section is not
paid as and when due by a Cannabis Establishment, the unpaid balance,
and any interest accruing thereon, shall be a lien on the parcel of
real property comprising the Cannabis Establishment's premises
in the same manner as all other unpaid municipal taxes, fees, or other
charges. The lien shall be superior and paramount to the interest
in the parcel of any owner, lessee, tenant, mortgagee, or other person,
except the lien of municipal taxes, and shall be on a parity with
and deemed equal to the municipal lien on the parcel for unpaid property
taxes due and owing in the same year. The Borough shall file in the
office of its tax collector a statement showing the amount and due
date of the unpaid balance and identifying the lot and block number
of the parcel of real property that comprises the delinquent Cannabis
Establishment's premises. The lien shall be enforced as a municipal
lien in the same manner as all other municipal liens are enforced.
c.
The collection of taxes pursuant to the section shall be used towards
the payment of debt service.
[Added 12-20-2021 by Ord.
No. 21-Code-873]
a.
The Borough's Chief Financial Officer is charged with the administration
and enforcement of the provisions of this chapter, and is empowered
to prescribe, adopt, promulgate and enforce rules and regulations
relating to any matter pertaining to the administration and enforcement
of this chapter, including provisions for the reexamination and corrections
of declarations and returns, and of payments alleged or found to be
incorrect, or as to which an overpayment is claimed or found to have
occurred, and to prescribe forms necessary for the administration
of this chapter. Should a Cannabis Establishment fail or refuse to
provide adequate information to the Chief Financial Officer to determine
the amount of tax due, the Chief Financial Officer may use information
provided to the Chief Financial Officer from other sources (i.e.,
the Commission or Department of Treasury) to determine the amount
of tax liability.
b.
It shall be the duty of the Chief Financial Officer to collect and
receive the taxes, fines, and penalties imposed by this chapter. It
shall also be the duty of the Chief Financial Officer to keep a record
showing the date of such receipt. The Chief Financial Officer is authorized
to enter into agreements with the State of New Jersey to obtain information
to facilitate administration of the tax. The Chief Financial Officer
is authorized to issue a ruling upon written request of a taxpayer
or upon its own volition.
c.
The Chief Financial Officer is hereby authorized to examine the books,
papers and records of the Cannabis Establishment to verify the accuracy
of any declaration or return, or if no declaration or return was filed,
to ascertain the tax due. Every Cannabis Establishment is hereby directed
and required to give to the Chief Financial Officer, or to any agent
designated by him/her, the means, facilities and opportunity for such
examinations and investigations, as are hereby authorized.
[Added 12-20-2021 by Ord.
No. 21-Code-873]
A Cannabis Establishment liable for the transfer tax is required
to keep such records as will enable the filing of true and accurate
returns or the tax and such records shall be preserved for a period
of not less than three years from the filing date or due date, whichever
is later, in order to enable the Chief Financial Officer or any agent
designated to verify the correctness of the declarations or returns
filed. If records are not available in the Borough to support the
returns which were filed or which should have been filed, the Cannabis
Establishment will be required to make them available to the Chief
Financial Officer either by producing them at a location in the Borough
or by paying for the expenses incurred by the Chief Financial Officer
or his agent in traveling to the place where the records are regularly
kept.
[Added 12-20-2021 by Ord.
No. 21-Code-873]
All Cannabis Establishments and Cannabis Delivery operating
in the Borough are required to file a transfer tax return with the
Chief Financial Officer to report their sales during each calendar
quarter and the amount of tax in accordance with the provisions of
this chapter. Returns shall be filed and payments of tax imposed for
the preceding calendar quarter shall be made on or before the last
day of April, July, October, and January, respectively. A Cannabis
Establishment who has overpaid the transfer tax, or who believes it
is not liable for the tax, may file a written request on an amended
tax return with the Chief Financial Officer for a refund or a credit
of the tax. For amounts paid as a result of a notice asserting or
informing a taxpayer of an underpayment, a written request for a refund
shall be filed with the chief financial officer within two years of
the date of the payment.
[Added 12-20-2021 by Ord.
No. 21-Code-873]
The returns filed by the Cannabis Establishments and the records
and files of the Chief Financial Officer respecting the administration
of the transfer tax, shall be considered confidential and privileged
and neither the Borough nor any employee or agent engaged in the administration
thereof or charged with the custody of any such records or files,
nor any former officer or employee, nor any person who may have secured
information therefrom, shall divulge, disclose, use for their own
personal advantage, or examine for any reason other than a reason
necessitated by the performance of official duties any information
obtained from the said records or files or from any examination or
inspection of the premises or property of any person. Neither the
Chief Financial Officer nor any employee engaged in such administration
or charged with the custody of any such records or files shall be
required to produce any of them for the inspection of any person or
for use in any action or proceeding except when the records or files
or the facts shown thereby are directly involved in an action or proceeding
under the provisions of the State Uniform Tax Procedure Law or of
the tax law affected, or when there has been a request under the Open
Public Records Act and no exemption is applicable, or where the determination
of the action or proceeding will affect the validity or amount of
the claim of the Borough under the tax provisions of this chapter.
[Added 12-20-2021 by Ord.
No. 21-Code-873]
a.
The Borough's Chief Financial Officer may initiate an audit
by means of an audit notice to be served on any agent at the Cannabis
Establishment's principal place of business. If, as a result
of an examination conducted by the Chief Financial Officer, a return
has not been filed by a Cannabis Establishment or a return is found
to be incorrect and transfer taxes are owed, the Chief Financial Officer
is authorized to assess and collect any tax due. If no return has
been filed and tax is found to be due, the tax actually due may be
assessed and collected with or without the formality of obtaining
a return from the taxpayer. Deficiency assessments (i.e., where a
Cannabis Establishment has filed a return but is found to owe additional
tax) shall include taxes for up to three years to the date when the
deficiency is assessed. Where no return was filed, there shall be
no limit to the period of assessment. All expenses incurred by the
Borough associated with the audit and the collection of the outstanding
taxes shall be paid by the delinquent Cannabis Establishment.
b.
Upon proposing an assessment, the Chief Financial Officer shall send
the Cannabis Establishment an interim notice by certified mail, return
receipt requested, which advises the taxpayer of additional taxes
that are due. Should the taxpayer wish to dispute the assessment administratively
by requesting a hearing with the Chief Financial Officer, it must
do so within 30 days of the date of such interim notice. If, after
the Chief Financial Officer sends an interim notice, a taxpayer fails
to timely request a hearing with the Chief Financial Officer or requests
a hearing and after conducting a hearing, the Chief Financial Officer
determines that the taxes are due, the Chief Financial Officer shall
send the Cannabis Establishment by certified mail, return receipt
requested, a final notice. Should the Cannabis Establishment wish
to dispute the assessment set forth in the final notice, the Cannabis
Establishment must initiate an appeal in the New Jersey Tax Court
within 90 days after the mailing of any final notice regarding a decision,
order, finding, assessment, or action hereunder.
[Added 12-20-2021 by Ord.
No. 21-Code-873]
The following periods of limitations shall apply to suits for
collection of taxes:
a.
When a return has been filed but no tax paid, any suit brought to
recover the tax due and unpaid shall be filed within two years after
the return was due or filed, whichever is later;
b.
Where no return was filed or a fraudulent return was filed, there
shall be no limits to file suit for the collection of taxes;
c.
Where, before the expiration of the time prescribed in this section
for the filing a lawsuit against the taxpayer, both the Chief Financial
Officer and the taxpayer have consented in writing to its extension
after such time, the suit may be filed at any time prior to the expiration
of the period agreed upon; the period so agreed upon may be extended
by subsequent agreements in writing made before the expiration of
the period previously agreed upon.
[Added 12-20-2021 by Ord.
No. 21-Code-873]
Any person who receives an interim notice from the Chief Financial
Officer may within 30 days after the date of an interim notice, request
a hearing with the Chief Financial Officer. Any person who fails to
request a Chief Financial Officer's hearing in a timely manner
waives the right to administratively contest any element of the assessment.
The Chief Financial Officer shall accept payments of disputed tax
amounts under protest pending appeals; however, any request for refund
of such monies must be filed in accordance with this section.
[Added 12-20-2021 by Ord.
No. 21-Code-873]
Any aggrieve Cannabis Establishment may, within 90 days after
the mailing of any final notice regarding a decision, order, finding,
assessment, or action hereunder, or publication of any rule, regulation
or policy of the Chief Financial Officer, appeal to the Tax Court
pursuant to the jurisdiction granted by N.J.S.A. 2B:13-2a(3) to review
actions or regulations of municipal officials by filing a complaint
in accordance with the New Jersey Court Rule 8:3-1. The appeal provided
by this section shall be the exclusive remedy available to any taxpayer
for review of a final decision of the Chief Financial Officer in respect
to a determination of liability for the tax imposed by this chapter.
[Added 12-20-2021 by Ord.
No. 21-Code-873]
Unless specifically defined otherwise herein, any term used
herein shall incorporate the definition of that term in the Act.[1] Any article, section, paragraph, subsection, clause, or
other provision of the Borough of Oakland Code inconsistent with the
provisions of this ordinance is hereby repealed to the extent of such
inconsistency.
[1]
Editor's Note: N.J.S.A. 24:6I-31 et seq., New Jersey Cannabis
Regulatory, Enforcement Assistance, and Marketplace Modernization
Act.
[Added 12-20-2021 by Ord.
No. 21-Code-873]
No ordinance, regulation or interpretation thereof shall conflict
with the Act. If any section, paragraph, subsection, clause, or provision
of this ordinance shall be adjudged by a court of competent jurisdiction
to conflict with the Act or otherwise be invalid, such adjudication
shall apply only to the section, paragraph, subsection, clause, or
provision so adjudged, and the remainder of this ordinance shall be
deemed valid and effective.
[Added 12-20-2021 by Ord.
No. 21-Code-873]
No provision of this chapter shall be applied so as to impose
any unlawful burden on either interstate commerce or any activity
of the State or Federal government.
[Added 12-20-2021 by Ord.
No. 21-Code-873]
Any person, firm or corporation who shall violate any of the provisions of this chapter shall, upon conviction, be subject to the penalties provided by § 1-5, General Penalty, of this Code, and each violation of any of the provisions of this chapter and each day the same is violated shall be deemed and taken to be a separate and distinct offense.
[Added 12-20-2021 by Ord. No. 21-Code-872]
No Cannabis Establishment or Cannabis Distributor shall sell,
grow, manufacture, or distribute any cannabis items within the Borough
without first obtaining a license in accordance with this chapter.
[Added 12-20-2021 by Ord.
No. 21-Code-872]
All licenses required by this chapter shall be issued by the
Borough Clerk upon approval by the Mayor and Borough Council.
[Added 12-20-2021 by Ord.
No. 21-Code-872]
a.
Any person or persons, corporation or corporations desiring to conduct,
maintain or operate any Cannabis Establishments and Cannabis Distributor
within the Borough of Oakland shall first make an application in writing
to the Borough for a license to conduct and operate such business,
giving the exact location where the business shall be conducted and
the description of the business.
b.
Cannabis Establishments and Cannabis Distributors. A request for
a license to operate a Cannabis Establishment and Cannabis Distributor,
including but not limited to occupancy and building permits, shall
first be submitted for the approval of the Borough.
1.
Applications shall be submitted to the Borough Clerk and will be
deemed complete upon submittal of all documentation and information
described in herein to the satisfaction of the Borough Clerk;
2.
Subject to the provisions set forth below, licensing for a Cannabis
Establishment and Cannabis Distributor will be on a reserve basis
based on the order a fully completed Cannabis Establishment application
is received. A licensee's failure to submit a fully completed
Cannabis Establishment application after a period of 90 days from
the original date of submittal shall constitute a basis to deem the
application expired and subject the licensee to a loss of the reserve
space; and
3.
No applications will be reserved when occupancy permits have reached
the maximum permitted by ordinance.
4.
The following documentation and information shall be provided in
conjunction with the application:
(a)
The contact information of the licensee, including but not limited
to, the licensee's name, the principal place of business, a mailing
address, e-mail address, fax number, and the primary point of contact
for the application. The information shall be promptly updated as
necessary;
(b)
A copy of the current State-approved license. If State license
is pending, a signed affidavit giving a general description of the
State license status with supporting documentation;
(c)
An affidavit or certification affirming compliance with all
requirements of State and local law;
(d)
A general description of the proposed structure in which the
facility will be located, including co-tenancy (if in a multi-tenant
building), total square footage, description of ingress and egress,
proposed exterior lighting plan, and building code compliance;
(e)
A depiction of the site design, including identifying any matters
requiring variance or waiver relief;
(f)
The proposed days and hours of operation, the anticipated building
occupancy capacity, and the average number of customers and employees
anticipated to frequent the facility on a daily basis;
(g)
The anticipated parking demand and parking plan per the applicable
Schedule of Off-Street Parking Requirements and available private
parking supply;
(h)
A depiction of the on-site traffic circulation, stacking, and
queuing, and demonstrating the manner in which the facility's
traffic will be managed so as to minimize the impact on adjacent roadways
and neighborhoods;
(i)
A proposed signage plan;
(j)
A plan for disposal of refuse including disposal of any cannabis
or cannabis byproducts which disposal method protects any portion
thereof from being possessed or ingested by any person or animal,
and which complies with applicable federal, state, and local regulations;
(k)
A plan describing the mitigation measures and ventilation system
that will be used to prevent any odor of cannabis off the premises;
(l)
Applicants for a Cannabis Establishment shall coordinate with
the Borough Chief of Police, or his or her designee, regarding the
measures to be taken to ensure the security of the facility and the
safety of the public and facility employees. Such measures may include,
but are not limited to, facility access controls, access to surveillance
systems, improved site lighting, and on-site law enforcement or security
personnel. Said coordination shall occur in conjunction with any application
for site plan, zoning permit or variance relief for a Cannabis Establishment
and shall be ongoing, as needed, to address any security or safety
issues;
(m)
The name(s) and location(s) of the offsite cultivation facilities
associated with a dispensary, if any;
(n)
Such other information or documentation as determined to be
necessary to assess compliance with the requirements set forth or
referenced herein.
c.
Additional regulations.
1.
Cultivators and manufacturers must purchase their own water and recycle
and purify any water that would be discharged into our aquifer;
2.
10% of the cannabis business's workforce must be comprised of
Oakland residents. Relief from this requirement may be provided by
the Governing Body upon showing that this requirement cannot be met
after sufficient recruitment efforts have been undertaken;
[Added 12-20-2021 by Ord.
No. 21-Code-872]
All licensed Cannabis Establishments and Cannabis Distributors
shall pay the annual license fee of $5,000 for each class of license
possessed.
[Added 12-20-2021 by Ord.
No. 21-Code-872]
All Cannabis Establishments and Cannabis Distributors shall
be subject at all times to proper and reasonable inspection, during
reasonable hours of the day and night, by the Borough or any of the
officers or agents thereof. Failure or refusal on the part of the
holder of such license or his agents or servants to permit such inspection,
and/or the neglect or refusal on the part of any such persons to immediately
correct and remedy any offensive or objectionable feature in connection
therewith upon demand, such license may be forthwith revoked and canceled,
and in addition thereto such person may be proceeded against for a
violation hereof as hereinafter specified.
[Added 12-20-2021 by Ord.
No. 21-Code-872]
a.
A license issued under the terms and provisions of this chapter shall
not be revoked, canceled or suspended until a hearing thereon shall
have been had by the Borough. Written notice of the time and place
of such hearing shall be served upon the holder of such license at
least 10 days prior to the date set for such hearing. Such notice
shall contain a brief statement of the grounds to be relied upon for
revoking, canceling or suspending such license. Notice may be given
either by personal delivery thereof to the person to be notified or
be deposited in the United States Post Office in a sealed envelope,
postage prepaid, addressed to such person to be notified at the business
address appearing upon said license. At the hearing, the licensee
or their representatives shall have an opportunity to be heard. Upon
due consideration and deliberation, the complaint may be dismissed,
or if the Borough concludes that the charges have been sustained and
substantiated, it may revoke, cancel or suspend the license held;
b.
If any such license shall have been revoked, neither the holder thereof
nor any person acting for him, directly or indirectly, shall be entitled
to another license to carry on the same business within the Borough,
unless and until a new application for such license be submitted in
accordance with this chapter and shall be approved by the Borough
Council.
