[1]
Editor’s Note: Ord. No. 2689 bans all marijuana facilities in the City, and the voters
approved continuation of the ban on 11-8-2016.
[Ord. No. 2655, Added, 9-30-2014]
For the purpose of this article, every person who sells marijuana,
medical marijuana, or marijuanainfused products in the City of Lake
Oswego is exercising a taxable privilege. The purpose of this article
is to impose a tax upon the sale of marijuana, medical marijuana and
marijuana-infused products.
[Ord. No. 2655, Added, 9-30-2014; Ord. No. 2890, Amended, 3-17-2022]
As used in this article, unless the context requires otherwise:
Means the Director of Finance for the City of Lake Oswego
or designee.
Means the total amount received in money, credits, property
or other consideration from sales of marijuana, medical marijuana
and marijuana-infused products that is subject to the tax imposed
by this article.
Means all parts of the plant of the Cannabis family Moraceae,
whether growing or not; the resin extracted from any part of the plant;
and every compound, manufacture, salt, derivative, mixture or preparation
of the plant or its resin, as may be defined by Oregon Revised Statutes
as they currently exist or may from time to time be amended. It does
not include the mature stalks of the plant, fiber produced from the
stalks, oil or cake made from the seeds of the plant, any other compound,
manufacture, salt, derivative, mixture or preparation of the mature
stalks (except the resin extracted therefrom), fiber, oil, or cake,
or the sterilized seed of the plant which is incapable of germination.
Means the office within the Oregon Health Authority that
administers the provisions of ORS 475.300 through 475.346, the Oregon
Medical Marijuana Act, and all policies and procedures pertaining
thereto.
Means natural person, joint venture, joint stock company,
partnership, association, club, company, corporation, business, trust,
organization, or any group or combination acting as a unit, including
the United States of America, the state of Oregon and any political
subdivision thereof, or the manager, lessee, agent, servant, office
or employee of any of them.
Means the acquisition or furnishing for consideration by
any person of marijuana or marijuana-infused products within the City.
Means a person who has been diagnosed by an attending physician
with a debilitating medical condition and for whom the use of medical
marijuana may mitigate the symptoms or effects of the person’s
debilitating medical condition, and who has been issued a registry
identification card by the Oregon Health Authority.
Means any person who is required to be licensed or has been
licensed by the state of Oregon to provide marijuana or marijuana-infused
products to purchasers for money, credit, property or other consideration.
Means either the tax payable by the seller or the aggregate
amount of taxes due from a seller during the period for which the
seller is required to report collections under this article.
Means any person obligated to account to the Director of
Finance for taxes collected or to be collected, or from whom a tax
is due, under the terms of this article.
[Ord. No. 2655, Added, 9-30-2014]
A tax is hereby levied and shall be paid by every seller exercising
the taxable privilege of selling marijuana and marijuana-infused products
as defined in this article. The Director is authorized to exercise
all supervisory and administrative powers with regard to the enforcement,
collection and administration of the marijuana tax.
[Ord. No. 2655, Added, 9-30-2014]
1.
In
addition to any fees or taxes otherwise provided for by law, every
seller engaged in the sale of marijuana and marijuana-infused products
shall pay a tax as follows:
a.
Five percent of the gross sale amount paid to the seller by a registry
identification cardholder.
b.
Ten percent of the gross sale amount paid to the seller of marijuana
and marijuana-infused products by individuals who are not registry
identification cardholders purchasing marijuana under the Oregon Medical
Marijuana Program.
2.
The
following deductions shall be allowed against sales received by the
seller providing marijuana or marijuana-infused products:
a.
Refunds of sales actually returned to any purchaser;
b.
Any adjustments in sales which amount to a refund to a purchaser,
providing such adjustment pertains to the actual sale of marijuana
or marijuana-infused products and does not include any adjustments
for other services furnished by a seller.
[Ord. No. 2655, Added, 9-30-2014; Ord. No. 2890, Amended, 3-17-2022]
1.
Every
seller shall, on or before the last day of the month following the
end of each calendar quarter (in the months of April, July, October
and January) make a return to the Director, on forms provided by the
Director, specifying the total sales subject to this article and the
amount of tax collected under this article. The seller may request
or the Director may establish shorter reporting periods for any seller
if the seller or Director deems it necessary in order to ensure collection
of the tax and the City may require further information in the return
relevant to payment of the tax. A return shall not be considered filed
until it is actually received by the Director.
2.
At
the time the return is filed, the full amount of the tax collected
shall be remitted to the City.
3.
Payments
shall be applied in the order of the oldest liability first, with
the payment credited first toward any accrued penalty, then to interest,
then to the underlying tax until the payment is exhausted. Crediting
of a payment toward a specific reporting period will be first applied
against any accrued penalty, then to interest, then to the underlying
tax. If the Director, in the Director’s sole discretion, determines
that an alternative order of payment application would be in the best
interest of the City in a particular tax or factual situation, the
Director may order such a change. The Director may establish shorter
reporting periods for any seller if the Director deems it necessary
in order to ensure collection of the tax. The Director also may require
additional information in the return relevant to payment of the liability.
When a shorter return period is requested, penalties and interest
shall be computed according to the shorter return period. Returns
and payments are due immediately upon cessation of business for any
reason. All taxes collected by sellers pursuant to this article shall
be held in trust for the account of the City until payment is made
to the City. A separate trust bank account is not required in order
to comply with this provision.
4.
Every
seller required to remit the tax imposed in this article shall be
entitled to retain 5% of all taxes due to defray the costs of bookkeeping
and remittance.
5.
Every
seller must keep and preserve, in an accounting format established
by the Director, records of all sales made by the dispensary, and
any such other books or accounts as may be required by the Director,
for a period of three years or until all taxes associated with the
sales have been paid, whichever is longer. The City shall have the
right to inspect all such records at all reasonable times.
[Ord. No. 2655, Added, 9-30-2014]
1.
Any
seller who fails to remit any portion of any tax imposed by this article
within the time required shall pay a penalty of 10% of the amount
of the tax, in addition to the amount of the tax.
2.
Any
seller who fails to remit any delinquent remittance on or before a
period of 60 days following the date on which the remittance first
became delinquent shall pay a second delinquency penalty of 10% of
the amount of the tax in addition to the amount of the tax and the
penalty first imposed.
4.
In
addition to the penalties imposed, any seller who fails to remit any
tax imposed by this article shall pay interest at the rate of 1% per
month or fraction thereof on the amount of tax, exclusive of penalties,
from the date on which the remittance first became delinquent until
paid.
5.
Every
penalty imposed, and such interest as accrues under the provisions
of this section, shall become a part of the tax required to be paid.
[Ord. No. 2655, Added, 9-30-2014]
If any seller should fail to make, within the time provided in this article, any report of the tax required by this article, the Director shall proceed in such manner as deemed best to obtain facts and information on which to base the estimate of tax due. As soon as the Director shall procure such facts and information as is able to be obtained, upon which to base the assessment of any tax imposed by this article and payable by any seller, the Director shall proceed to determine and assess against such seller the tax, interest and penalties provided for by this article. In case such determination is made, the Director shall give a notice of the amount so assessed by having it served personally or by depositing it in the United States mail, postage prepaid, addressed to the seller so assessed at the last known place of address. Such seller may make an appeal of such determination as provided in LOC § 24.04.080. If no appeal is filed, the Director’s determination is final and the amount thereby is immediately due and payable.
[Ord. No. 2655, Added, 9-30-2014]
Any seller aggrieved by any decision of the Director with respect
to the amount of such tax, interest and penalties, if any, may appeal
to the City Council by filing a written notice of appeal with the
Director within 30 days of the serving or mailing of the determination
of tax due. The City Council shall hear and consider any records and
evidence presented bearing upon the Director’s determination
of amount due, and make findings affirming, reversing or modifying
the determination. The findings of the City Council shall be final
and conclusive. Any amount found to be due shall be immediately due
and payable upon the service of notice.
[Ord. No. 2655, Added, 9-30-2014]
1.
Whenever the amount of any tax, interest or penalty has been overpaid or paid more than once, or has been erroneously collected or received by the City under this article, it may be refunded as provided in subsection (2) of this section, provided a claim in writing, stating under penalty of perjury the specific grounds upon which the claim is founded, is filed with the Director within one year of the date of payment. The claim shall be on forms furnished by the City.
2.
The
Director shall have 20 calendar days from the date of receipt of a
claim to review the claim and make a determination in writing as to
the validity of the claim. The Director shall notify the claimant
in writing of the Director’s determination. Such notice shall
be mailed to the address provided by claimant on the claim form. In
the event a claim is determined by the Director to be a valid claim,
in a manner prescribed by the Director a seller may claim a refund,
or take as credit against taxes collected and remitted, the amount
overpaid, paid more than once or erroneously collected or received.
The seller shall notify Director of claimant’s choice no later
than 15 days following the date Director mailed the determination.
In the event claimant has not notified the Director of claimant’s
choice within the 15-day period and the seller is still in business,
a credit will be granted against the tax liability for the next reporting
period. If the seller is no longer in business, a refund check will
be mailed to claimant at the address provided in the claim form.
3.
Any
credit for erroneous overpayment of tax made by a seller taken on
a subsequent return or any claim for refund of tax erroneously overpaid
filed by a seller must be so taken or filed within three years after
the date on which the overpayment was made to the City.
4.
No
refund shall be paid under the provisions of this section unless the
claimant establishes the right to a refund by written records showing
entitlement to the refund and the Director acknowledges the validity
of the claim.
[Ord. No. 2655, Added, 9-30-2014]
Any tax required to be paid to any seller under the provisions
of this article shall be deemed a debt owed by the seller to the City.
Any such tax collected by a seller that has not been paid to the City
shall be deemed a debt owed by the seller to the City. Any person
owing money to the City under the provisions of this article shall
be liable to an action brought in the name of the City of Lake Oswego
for the recovery of such amount. In lieu of filing an action for the
recovery, the City of Lake Oswego, when taxes due are more than 30
days delinquent, may submit any outstanding tax to a collection agency.
So long as the City of Lake Oswego has complied with the provisions
set forth in ORS 697.105, in the event the City turns over a delinquent
tax account to a collection agency, it may add to the amount owing
an amount equal to the collection agency fees, not to exceed the greater
of $50.00 or 50% of the outstanding tax, penalties and interest owing.
[Ord. No. 2655, Added, 9-30-2014]
1.
Violation of any provision of this article shall constitute a civil violation which shall be processed according to the procedures established in LOC Article 34.04. Each violation of a separate provision of this article shall constitute a separate offense and each day that a violation of this article is committed or permitted to continue shall constitute a separate offense. It is a violation of this article for any seller or other person to:
a.
Fail or refuse to comply as required herein;
b.
Fail or refuse to furnish any return required to be made;
c.
Fail or refuse to permit inspection of records;
d.
Fail or refuse to furnish a supplemental return or other data required
by the City;
e.
Render a false or fraudulent return or claim; or
f.
Fail, refuse or neglect to remit the tax to the City by the due date.
2.
The
remedies provided by this section are not exclusive and shall not
prevent the City from exercising any other remedy available under
the law, nor shall the provisions of this article prohibit or restrict
the City or other appropriate prosecutor from pursuing criminal charges
under state law or City ordinance.
[Ord. No. 2655, Added, 9-30-2014]
Except as otherwise required by law, it shall be unlawful for
the City, any officer, employee or agent to divulge, release or make
known in any manner any financial information submitted or disclosed
to the City under the terms of this article. Nothing in this section
shall prohibit:
1.
The
disclosure of the names and addresses of any person who is operating
a licensed establishment from which marijuana or marijuana-infused
products are sold or provided; or
2.
The
disclosure of general statistics in a form that would not reveal an
individual seller’s financial information; or
3.
Presentation
of evidence to the court or other tribunal having jurisdiction in
the prosecution of any criminal or civil claim by the City or an appeal
from the City for amount due the City under this article; or
4.
The
disclosure of information when such disclosure of conditionally exempt
records is ordered under public records law procedures; or
5.
The
disclosure of records related to a business’s failure to report
and remit the tax when the report or tax is in arrears for over six
months or the tax exceeds $5,000. The City Council expressly finds
and determines that the public interest in disclosure of such records
clearly outweighs the interest in confidentiality under ORS 192.501(5).
[Ord. No. 2655, Added, 9-30-2014]
1.
The
City, for the purpose of determining the correctness of any tax return,
or for the purpose of an estimate of taxes due, may examine or may
cause to be examined by an agent or representative designated by the
City for that purpose, any books, papers, records or memoranda, including
copies of seller’s state and federal income tax return, bearing
upon the matter of the seller’s tax return. All books, invoices,
accounts and other records shall be made available within the City
limits and be open at any time during regular business hours for examination
by the Director or an authorized agent of the Director.
2.
If
the examinations or investigations disclose that any reports of sellers
filed with the Director pursuant to the requirements herein have shown
incorrectly the amount of tax accruing, the Director may make such
changes in subsequent reports and payments, or make such refunds,
as may be necessary to correct the errors disclosed by its examinations
or investigations.
3.
The
seller shall reimburse the City for reasonable costs of the examination
or investigation if the action disclosed that the seller paid 95%
or less of the tax owing for the period of examination or investigation.
In the event that such examination or investigation results in an
assessment by and an additional payment due to the City, such additional
payment shall be subject to interest at the rate of 1% per month,
or the portion thereof, from the date the original tax payment was
due.
4.
If
any taxpayer refuses to voluntarily furnish any of the foregoing information
when requested, the City may immediately seek a subpoena from the
Lake Oswego Municipal Court to require that the taxpayer or a representative
of the taxpayer attend a hearing or produce any such books, accounts
and records for examination.
5.
Every
seller shall keep a record in such form as may be prescribed by the
City of all sales of marijuana and marijuana-infused products. The
records shall at all times during the business hours of the day be
subject to inspection by the City or authorized officers or agents
of the Director.
6.
Every
seller shall maintain and keep, for a period of three years, or until
all taxes associated with the sales have been paid, whichever is longer,
all records of marijuana and marijuana-infused products sold.
[Ord. No. 2655, Added, 9-30-2014]
The Director is authorized to prescribe forms and promulgate
rules and regulations to aid in the making of returns, the ascertainment,
assessment and collection of the marijuana tax and in particular,
and without limiting the general language of this article, to provide
for:
[Ord. No. 2655, Added, 9-30-2014]
This article shall not be construed as establishing that sellers are eligible for business licenses under the terms of LOC Chapter 20. Further, this article shall not be construed as authorizing sellers to operate without a business license.
