The ordinance codified in this chapter is known as the Cannabis
Business Tax Ordinance.
(Ord. 617 § 1, 2018)
The purpose of this chapter is to adopt a tax, for revenue purposes,
pursuant to Sections 37101 and 37100.5 of the California Government
Code, upon cannabis businesses that engage in business in the City,
should they be authorized to do so at some future time. The cannabis
business tax is shall be levied based upon business gross receipts
and square footage of plant canopy, should cannabis businesses ever
be authorized to operate in the City. In addition, cannabis businesses
that operate illegally in the City at any time, regardless of the
City's cannabis regulations, are subject to the cannabis business
tax. It is not a sales and use tax, a tax upon income, or a tax upon
real property.
The cannabis business tax is a general tax enacted solely for
general governmental purposes of the City and not for specific purposes.
All of the proceeds from the tax imposed by this chapter shall be
placed in the City's general fund and be available for any legal municipal
purpose.
(Ord. 617 § 1, 2018)
The intent of this chapter is to position the City to levy a
tax on all cannabis businesses that operate in the City, regardless
of whether such business is operating legally or illegally. Nothing
in this chapter shall be interpreted to authorize or permit any business
activity that would not otherwise be legal or permissible under laws
applicable to the activity at the time the activity is undertaken.
(Ord. 617 § 1, 2018)
The following words and phrases shall have the meanings set
forth below when used in this chapter:
shall include all activities engaged in or caused to be engaged
in within the City, including any commercial or industrial enterprise,
trade, profession, occupation, vocation, calling, or livelihood, whether
or not carried on for gain or profit, but shall not include the services
rendered by an employee to his or her employer.
means January 1 through December 31 of the following calendar
year.
means all parts of the plant Cannabis sativa Linnaeus, Cannabis
indica, or Cannabis ruderalis, whether growing or not; the seeds thereof;
the resin, whether crude or purified, extracted from any part of the
plant; and every compound, manufacture, salt, derivative, mixture,
or preparation of the plant, its seeds, or resin. "Cannabis" also
means the separated resin, whether crude or purified, obtained from
cannabis. "Cannabis" also means marijuana as defined by Section 11018
of the California Health and Safety Code and is not limited to medical
cannabis.
means raw cannabis that has undergone a process whereby the
raw agricultural product has been transformed into a concentrate,
an edible product, or a topical product. "Cannabis product" also means
marijuana products as defined by Section 11018.1 of the California
Health and Safety Code and is not limited to medical cannabis products.
means any business activity involving cannabis, including
but not limited to cultivating, transporting, distributing, manufacturing,
compounding, converting, processing, preparing, storing, packaging,
delivering, testing, dispensing, retailing and wholesaling of cannabis,
of cannabis products or of ancillary products and accessories, whether
or not carried on for gain or profit.
means the tax due pursuant to this chapter for engaging in
cannabis business in the City.
means all areas occupied by any portion of a cannabis plant
whether contiguous or noncontiguous on any one site. When plants occupy
multiple horizontal planes (as when plants are placed on shelving
above other plants) each plane shall be counted as a separate canopy
area.
means a permit issued by the City to a person to authorize
that person to operate or engage in a cannabis business.
means cultivation in the course of conducting a cannabis
business.
means any activity involving the planting, growing, harvesting,
drying, curing, grading, or trimming of cannabis and includes, but
is not limited to, the operation of a nursery.
means each and every person engaged in the operation or conduct
of any business, whether as owner, member of the owner's family, partner,
associate, agent, manager or solicitor, and each and every other person
employed or working in such business for a wage, salary, commission,
barter or any other form of compensation.
means the commencing, conducting, operating, managing or
carrying on of a cannabis business, whether done as owner, or by means
of an officer, agent, manager, employee, or otherwise, whether operating
from a fixed location in the City or coming into the City from an
outside location to engage in such activities. A person shall be deemed
engaged in business within the City if:
Such person or person's employee maintains a fixed place of
business within the City for the benefit or partial benefit of such
person;
Such person or person's employee owns or leases real property
within the City for business purposes;
Such person or person's employee regularly maintains a stock
of tangible personal property in the City for sale in the ordinary
course of business;
Such person or person's employee regularly conducts solicitation
of business within the City; or
Such person or person's employee performs work or renders services
in the City.
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The foregoing specified activities shall not be a limitation
on the meaning of "engaged in business."
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means evidence such as, without limitation, use of signs,
circulars, cards or any other advertising media, including the use
of internet or telephone solicitation, or representation to a government
agency or to the public that such person is engaged in a cannabis
business in the City.
except as otherwise specifically provided, means, whether
designated a sales price, royalty, rent, commission, dividend, or
other designation, the total amount (including all receipts, cash,
credits and property of any kind or nature) received or payable for
sales of goods, wares or merchandise or for the performance of any
act or service of any nature for which a charge is made or credit
allowed (whether such service, act or employment is done as part of
or in connection with the sale of goods, wares, merchandise or not),
without any deduction therefrom on account of the cost of the property
sold, the cost of materials used, labor or service costs, interest
paid or payable, losses or any other expense whatsoever. However,
the following shall be excluded from gross receipts:
Cash discounts where allowed and taken on sales;
Any tax required by law to be included in or added to the purchase
price and collected from the consumer or purchaser;
Such part of the sale price of any property returned by purchasers
to the seller as refunded by the seller by way of cash or credit allowances
or return of refundable deposits previously included in gross receipts;
Receipts derived from the occasional sale of used, obsolete
or surplus trade fixtures, machinery or other equipment used by the
taxpayer in the regular course of the taxpayer's business;
Cash value of sales, trades or transactions between departments
or units of the same business;
Whenever there are included within the gross receipts amounts
which reflect sales for which credit is extended and such amount proved
uncollectible in a subsequent year, those amounts may be excluded
from the gross receipts in the year they prove to be uncollectible;
provided, however, if the whole or portion of such amounts excluded
as uncollectible are subsequently collected they shall be included
in the amount of gross receipts for the period when they are recovered;
Receipts of refundable deposits, except that such deposits when
forfeited and taken into income of the business shall not be excluded
when in excess of one dollar;
Amounts collected for others where the business is acting as
an agent or trustee and to the extent that such amounts are paid to
those for whom collected. These agents or trustees must provide the
Administrative Services Department with the names and the addresses
of the others and the amounts paid to them. This exclusion shall not
apply to any fees, percentages, or other payments retained by the
agent or trustees.
Retail sales of t-shirts, sweaters, hats, stickers, key chains, bags, books, posters or other personal tangible property which the Tax Administrator has excluded in writing by issuing an administrative ruling per Section 3-18.140 shall not be subject to the cannabis business tax under this chapter. However, any retail sales not subject to this chapter as a result of the administrative ruling shall be subject to the appropriate business tax under Chapter 3-5 or any other chapter or title as determined by the Tax Administrator.
means the cultivation of cannabis within a permanent structure
using exclusively artificial light or within any type of structure
using artificial light at a rate above 25 watts per square foot.
means a source of light that is primarily used for promoting
the biological process of plant growth. Lighting does not include
sources of light that primarily exist for the safety or convenience
of staff or visitors to the facility, such as emergency lighting,
walkway lighting, or light admitted via small skylights, windows or
ventilation openings.
means a facility or part of a facility that is used only
for producing clones, immature plants, seeds, and other agricultural
products used specifically for the planting, propagation, and cultivation
of cannabis.
means the cultivation of mature cannabis without the use
of artificial lighting in the canopy area at any point in time. Artificial
lighting is permissible only to maintain immature plants.
means an individual, firm, partnership, joint venture, association,
corporation, limited liability company, estate, trust, business trust,
receiver, syndicate, or any other group or combination acting as a
unit, whether organized as a nonprofit or for-profit entity, and includes
the plural as well as the singular number.
means and includes any sale, exchange, or barter.
means the State of California.
means a State license issued pursuant to California Business
and Professions Code Sections 19300, et seq., or other applicable
State law.
means the City of Atascadero Director of Administrative Services
or his or her designee.
means a cannabis business that: (1) offers or performs tests
of cannabis or cannabis products; (2) offers no service other than
such tests; (3) sells no products, excepting only testing supplies
and materials; (4) is accredited by an accrediting body that is independent
from all other persons involved in the cannabis industry in the State;
and (5) is registered with the State Department of Public Health.
(Ord. 617 § 1, 2018)
(a)
Beginning
January 1, 2019, there is imposed upon each person who is engaged
in business as a cannabis business a cannabis business tax regardless
if the business has been issued a permit to operate lawfully in the
City or is operating unlawfully.
(b)
The
initial rate of the cannabis business tax shall be as follows:
(1)
For every person who is engaged in commercial cannabis cultivation
in the City:
(i)
Seven dollars annually per square foot of canopy space for indoor
cultivation within a permanent structure that uses exclusively artificial
lighting.
(ii)
Four dollars annually per square foot of canopy space for indoor
cultivation within a permanent structure that uses a combination of
natural and supplemental artificial lighting.
(iii)
Two dollars annually per square foot of canopy space for outdoor
cultivation that uses no artificial lighting.
(iv)
One dollar ($1.00) annually per square foot of canopy space
for any nursery.
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For purposes of this subsection (b), the square feet of canopy
space for a business shall be rebuttably presumed to be the maximum
square footage of canopy allowed by the business's City permit for
commercial cannabis cultivation, or, in the absence of a City permit,
the square footage shall be the maximum square footage of canopy for
commercial cannabis cultivation allowed by the State license type.
Should a City permit be issued to a business which cultivates only
for certain months of the year, the City shall prorate the tax as
to sufficiently reflect the period in which cultivation is occurring
at the business. In no case shall canopy square footage which is authorized
by the City commercial cannabis permit but not utilized for cultivation
be deducted for the purpose of determining the tax for cultivation,
unless the Tax Administrator is informed in writing and authorizes
such reduction for the purpose of relief from the tax prior to the
period for which the space will not be used, that such space will
not be used.
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(2)
For every person who engages in the operation of a testing laboratory:
1% of gross receipts.
(3)
For every person who engages in the retail sales of cannabis as a
retailer (dispensary) or non-store front retailer (delivery) or microbusiness
(retail sales): 4% of gross receipts.
(4)
For every person who engages in a cannabis distribution business:
2% of gross receipts.
(5)
For every person who engages in a cannabis manufacturing, processing,
or microbusiness (nonretail), or any other type of cannabis business
not described in Section (b) (1), (2), (3) or (4): two and one-half
percent (2.5%) of gross receipts.
(c)
The
City Council may, by resolution or ordinance, adjust the rate of the
cannabis business tax. However, in no event may the City Council set
any adjusted rate that exceeds the maximum rate calculated pursuant
to Subdivision (d) of this section for the date on which the adjusted
rate will commence.
(d)
The
maximum rate shall be calculated as follows:
(1)
For every person who is engaged in commercial cannabis cultivation
in the City:
(i)
Through January 1, 2021, the maximum rate shall be:
a.
Ten dollars annually per square foot of canopy space for indoor cultivation
within a permanent structure that uses exclusively artificial lighting.
b.
Seven dollars annually per square foot of canopy space for indoor
cultivation within a permanent structure that uses a combination of
natural and supplemental artificial lighting.
c.
Four dollars annually per square foot of canopy space for outdoor
cultivation that uses no artificial lighting.
d.
Two dollars annually per square foot of canopy space for any nursery.
(ii)
On January 1, 2022 and on each January 1 thereafter, the maximum
annual tax rate per square foot of each type of canopy space shall
increase by the percentage change between January of the calendar
year prior to such increase and January of the calendar year of the
increase in the Consumer Price Index ("CPI") for all urban consumers
in the Los Angeles-Long Beach-Anaheim area as published by the United
States Government Bureau of Labor Statistics (BLS). In the event the
BLS modifies the Los Angeles-Long Beach-Anaheim Index, then its successor
or equivalent shall apply. However, no CPI adjustment resulting in
a decrease of any tax imposed by this subsection shall be made.
(2)
For every person who engages in the operation of a testing laboratory,
the maximum tax rate shall not exceed two and one-half percent (2.5%)
of gross receipts.
(3)
For every person who engages in the retail sales of cannabis as a
retailer (dispensary) or non-store front retailer (delivery business),
or microbusiness (retail sales activity) the maximum tax rate shall
not exceed 6% of gross receipts.
(4)
For every person who engages in a cannabis distribution business,
the maximum tax rate shall not exceed 3% of gross receipts.
(5)
For every person who engages in a cannabis manufacturing, processing,
or microbusiness (non-retail activity) or any other type of cannabis
business not described in Section (d) (1), (2), (3) or (4), the maximum
tax rate shall not exceed 4% of gross receipts.
(Ord. 617 § 1, 2018)
(a)
The
cannabis business tax imposed by this chapter shall be paid, in arrears,
on a quarterly basis. For commercial cannabis cultivation, the tax
due for each calendar quarter shall be based on the square footage
of the business's canopy space during the quarter and the rate shall
be 25% of the applicable annual rate. For all other cannabis businesses
activities, the tax due for each calendar quarter shall be based on
the gross receipts for the quarter.
(b)
Each
person owing cannabis business tax for a calendar quarter shall, no
later than the last day of the month following the close of the calendar
quarter, file with the Tax Administrator a statement of the tax owed
for that calendar quarter and the basis for calculating that tax.
The Tax Administrator may require that the statement be submitted
on a form prescribed by the Tax Administrator. The tax for each calendar
quarter shall be due and payable on that same date as the statement
for the calendar quarter is due.
(c)
Upon
cessation of a cannabis business, tax statements and payments shall
be immediately due for all calendar quarters up to the calendar quarter
during which cessation occurred.
(d)
The
Tax Administrator may, at his or her discretion, establish shorter
report and payment periods for any taxpayer as the Tax Administrator
deems necessary to ensure collection of the tax. The Tax Administrator
may also require that a deposit, to be applied against the taxes for
a calendar quarter, be made by a taxpayer at the beginning of that
calendar quarter. In no event shall the deposit required by the Tax
Administrator exceed the tax amount he or she projects will be owed
by the taxpayer for the calendar quarter. The Tax Administrator may
require that a taxpayer make payments via a cashier's check, money
order, wire transfer, or similar instrument.
(e)
For
purposes of this section, the square feet of canopy space for a business
shall be rebuttably presumed to be no less than the maximum square
footage of canopy allowed by the business's City permit for commercial
cannabis cultivation, or, in the absence of a City permit, the square
footage shall be the maximum square footage of canopy for commercial
cannabis cultivation allowed by the state license type. In no case
shall canopy square footage which is authorized by the permit or license
but not utilized for cultivation be excluded from taxation unless
the Tax Administrator is informed in writing, prior to the period
for which the space will not be used, that such space will not be
used.
(Ord. 617 § 1, 2018)
Whenever any payment, statement, report, request or other communication
is due, it must be received by the Tax Administrator on or before
the final due date. A postmark will not be accepted as timely remittance.
If the due date would fall on a Saturday, Sunday or a holiday, the
due date shall be the next regular business day on which the City
is open to the public.
(Ord. 617 § 1, 2018)
Unless otherwise specifically provided under other provisions of this chapter, the taxes required to be paid pursuant to this chapter shall be deemed delinquent if not received by the Tax Administrator on or before the due date as specified in Sections 3-18.060 and 3-18.070.
(Ord. 617 § 1, 2018)
The City may as a courtesy send a tax notice to the business.
However, the Tax Administrator is not required to send a delinquency
or other notice or bill to any person subject to the provisions of
this chapter. Failure to send such notice or bill shall not affect
the validity of any tax or penalty due under the provisions of this
chapter.
(Ord. 617 § 1, 2018)
(a)
Any
person who fails or refuses to pay any cannabis business tax required
to be paid pursuant to this chapter on or before the due date shall
pay penalties and interest as follows:
(1)
A penalty equal to 10% of the amount of the tax, in addition to the
amount of the tax, plus interest on the unpaid tax calculated from
the due date of the tax at the rate of one percent (1.0%) per month.
(2)
If the tax remains unpaid for a period exceeding one calendar month
beyond the due date, an additional penalty equal to 25% of the amount
of the tax, plus interest at the rate of one percent (1.0%) per month
on the unpaid tax and on the unpaid penalties.
(3)
Interest shall be applied at the rate of one percent (1.0%) per month
on the first day of the month for the full month and will continue
to accrue monthly on the tax and penalty until the balance is paid
in full.
(b)
Whenever
a check or electronic payment is submitted in payment of a cannabis
business tax and the payment is subsequently returned unpaid by the
bank for any reason, the taxpayer will be liable for the tax amount
due plus any fees, penalties and interest as provided for in this
section, and any other amount allowed under State law.
(Ord. 617 § 1, 2018)
(a)
No refund shall be made of any tax collected pursuant to this chapter, except as provided in Section 3-18.120.
(b)
No
refund of any tax collected pursuant to this chapter shall be made
because of the discontinuation, dissolution, or other termination
of a business.
(Ord. 617 § 1, 2018)
(a)
Whenever
the amount of any cannabis business tax, penalty or interest has been
overpaid, paid more than once, or has been erroneously collected or
received by the City under this chapter, it may be refunded to the
claimant who paid the tax provided that a written claim for refund
is filed with the Tax Administrator within one year of the date the
tax was originally due and payable.
(b)
The
Tax Administrator, his or her designee or any other City officer charged
with the administration of this chapter shall have the right to examine
and audit all the books and business records of the claimant in order
to determine the eligibility of the claimant to the claimed refund.
No claim for refund shall be allowed if the claimant refuses to allow
such examination of claimant's books and business records after request
by the Tax Administrator to do so.
(c)
In
the event that the cannabis business tax was erroneously paid, and
the error is attributable to the City, the City shall refund the amount
of tax erroneously paid up to one year from when the error was identified.
If an error is attributable to the claimant, the City may retain an
amount established by resolution of the City Council from time to
time in an amount sufficient to recover the City's cost to process
the claim and refund the balance.
(Ord. 617 § 1, 2018)
The provisions of this chapter shall not apply to personal cannabis
cultivation as defined in the "Medicinal and Adult Use Cannabis Regulation
and Safety Act". This chapter shall not apply to personal use of cannabis
that is specifically exempted from State licensing requirements, that
meets the definition of personal use or equivalent terminology under
State law, and for which the individual receives no compensation whatsoever
related to that personal use.
(Ord. 617 § 1, 2018)
(a)
It
shall be the duty of the Tax Administrator to collect the taxes, penalties,
fees, and perform the duties required by this chapter.
(b)
For
purposes of administration and enforcement of this chapter generally,
the Tax Administrator may from time to time promulgate such administrative
interpretations, rules, and procedures consistent with the purpose,
intent, and express terms of this chapter as he or she deems necessary
to implement or clarify such provisions or aid in enforcement.
(c)
The
Tax Administrator may take such administrative actions as needed to
administer the tax, including, but not limited to:
(1)
Provide to all cannabis business taxpayers forms for the reporting
of the tax;
(2)
Provide information to any taxpayer concerning the provisions of
this chapter;
(3)
Receive and record all taxes remitted to the City as provided in
this chapter;
(4)
Maintain records of taxpayer reports and taxes collected pursuant
to this chapter;
(5)
Assess penalties and interest to taxpayers pursuant to this chapter;
(6)
Determine amounts owed and enforce collection pursuant to this chapter;
(7)
Take such other reasonable steps as he or she deems necessary and
appropriate to enforce this chapter.
(Ord. 617 § 1, 2018)
Any taxpayer aggrieved by any decision of the Tax Administrator
with respect to the amount of tax, interest, penalties and fees, if
any, due under this chapter may appeal to the City Council by filing
a notice of appeal with the City Clerk within 30 days of the serving
or mailing of the determination of tax due. The City Clerk, or his
or her designee, shall fix a time and place for hearing such appeal,
and the City Clerk, or his or her designee, shall give notice in writing
to such operator at the last known place of address. The finding of
the City Council shall be final and conclusive and shall be served
upon the appellant in the manner prescribed by this chapter for service
of notice of hearing. Any amount found to be due shall be immediately
due and payable upon the service of the notice.
(Ord. 617 § 1, 2018)
(a)
Any
taxes, penalties and/or fees required to be paid under the provisions
of this chapter shall be deemed a debt owed to the City. Any person
owing money to the City under the provisions of this chapter shall
be liable in an action brought in the name of the City for the recovery
of such debt. The provisions of this section shall not be deemed a
limitation upon the right of the City to bring any other action including
criminal, civil and equitable actions, based upon the failure to pay
the tax, penalties and/or fees imposed by this chapter or the failure
to comply with any of the provisions of this chapter.
(b)
In
addition to any other remedies available under Federal, State, or
local law, if any amount required to be paid to the City under this
chapter is not paid when due, the Tax Administrator may, within three
years after the amount is due record a certificate of lien specifying
the amount of taxes, fees and penalties due, and the name and address
of the individual or business as it appears on the records of Tax
Administrator. The lien shall also specify that the Tax Administrator
has complied with all provisions of this chapter in the determination
of the amount required to be paid. From the time of the filing for
record, the amount required to be paid, together with penalties thereon,
constitutes a lien upon all real property in the City owned by the
individual or business, or subsequently acquired by the individual
or business before the lien expires. The lien has the force, effect,
and priority of a judgment lien and shall continue for 10 years from
filing of the certificate unless sooner released or otherwise discharged.
(c)
At any time within three years after any individual or business is delinquent in the payment of any amount herein required to be paid or within three years after the last recording of a certificate of lien under subsection (b) of this section, the Tax Administrator may issue a warrant for the enforcement of any liens and for the collection of any amount required to be paid to the City under this chapter. The warrant shall be directed to the sheriff and shall have the same effect as a writ of execution. The warrant shall be levied and sale made pursuant to it in the same manner and with the same effect as a levy of and a sale pursuant to a writ of execution. The Tax Administrator may pay or advance to the sheriff, the same fees, commissions and expenses for service provided by law for similar services pursuant to a writ of execution. The Tax Administrator shall approve the fees for publication in the newspaper.
(d)
At
any time within three years after recording a lien against any individual
or business, if the lien is not discharged and released in full, the
Tax Administrator may forthwith seize any asset or property, real
or personal (including bank account), of the operator and sell at
public auction the asset or property, or a sufficient part of it to
pay the amount due together with any penalties and interest imposed
for the delinquency and any cost incurred on account of the seizure
and sale. Assets or property of the business subject to seizure and
sale subject to this chapter shall not include any asset or property
which is exempt from execution under the provisions of Code of Civil
Procedure.
(Ord. 617 § 1, 2018)
If a business subject to the tax is operating both within and
outside the City, it is the intent of the City to apply the cannabis
business tax so that the measure of the tax fairly reflects the proportion
of the taxed activity actually carried on in the City. To the extent
federal or State law requires that any tax due from any taxpayer be
apportioned, the taxpayer may indicate said apportionment on his or
her tax return. The Tax Administrator may promulgate administrative
procedures for apportionment as he or she finds useful or necessary.
(Ord. 617 § 1, 2018)
(a)
This
tax is intended to be applied in a manner consistent with the United
States and California Constitutions and State law. None of the tax
provided for by this chapter shall be applied in a manner that causes
an undue burden upon interstate commerce, a violation of the equal
protection or due process clauses of the Constitutions of the United
States or the State of California or a violation of any other provision
of the California Constitution or State law. If a person believes
that the tax, as applied to him or her, is impermissible under applicable
law, he or she may request that the Tax Administrator release him
or her from the obligation to pay the impermissible portion of the
tax.
(b)
The
taxes imposed under this chapter are excises on the privilege of engaging
in business as a cannabis business in the City. It is not a sales
or use tax and shall not be calculated or assessed as such. Nevertheless,
at the option of a cannabis business, the tax may be separately identified
on invoices, receipts and other evidences of transactions.
(c)
Pursuant
to California Constitution, Article XIII B, the appropriation limit
for the City is hereby increased to the maximum extent over the maximum
period of time allowed under law by the amount of the revenues generated
by the tax.
(Ord. 617 § 1, 2018)
(a)
For
the purpose of ascertaining the amount of cannabis business tax owed
or verifying any representations made by any taxpayer to the City
in support of his or her tax calculation, the Tax Administrator shall
have the power to inspect any location where commercial cannabis cultivation
occurs and to audit and examine all books and records (including,
but not limited to, bookkeeping records, State and federal income
tax returns, and other records relating to the gross receipts of the
business) of persons engaged in cannabis businesses. In conducting
such investigation, the Tax Administrator shall have the power to
inspect any equipment, such as computers or point of sale machines,
that may contain such records.
(b)
It
shall be the duty of every person liable for the collection and payment
to the City of any tax imposed by this chapter to keep and preserve,
for a period of at least three years, all records as may be necessary
to determine the amount of such tax as he or she may have been liable
for the collection of and payment to the City, which records the Tax
Administrator or his or her designee shall have the right to inspect
at all reasonable times.
(Ord. 617 § 1, 2018)
(a)
Nothing
contained in this chapter shall be deemed to repeal, amend, be in
lieu of, replace or in any way affect any requirements for any permit
or license required by, under or by virtue of any provision of any
other chapter of this code or any other ordinance or resolution of
the City, nor be deemed to repeal, amend, be in lieu of, replace or
in any way affect any tax, fee or other charge imposed, assessed or
required by, under or by virtue of any other chapter of this code
or any other ordinance or resolution of the City. Any references made
or contained in any other chapter of this code to any licenses, license
taxes, fees, or charges, or to any schedule of license fees, shall
be deemed to refer to the licenses, license taxes, fees or charges,
or schedule of license fees, provided for in other chapter of this
code.
(b)
Notwithstanding subsection (a) of this section, a cannabis business shall not be required to pay the license fee required by Chapter 3-5 of Title 3 of this code so long as all of business' activities within the City that would require payment of a license fee are activities subject to the cannabis business tax.
(Ord. 617 § 1, 2018)
(a)
The
payment of a cannabis business tax required by this chapter, and its
acceptance by the City, shall not entitle any person to carry on any
cannabis business unless the person has complied with all of the requirements
of this code and all other applicable State laws.
(b)
No
tax paid under the provisions of this chapter shall be construed as
authorizing the conduct or continuance of any illegal or unlawful
business, or any business in violation of any local or State law.
(Ord. 617 § 1, 2018)
If the Tax Administrator is not satisfied that any statement filed as required under the provisions of this chapter is correct, or that the amount of tax is correctly computed, he or she may compute and determine the amount to be paid and make a deficiency determination upon the basis of the facts contained in the statement or upon the basis of any information in his or her possession or that may come into his or her possession within three years of the date the tax was originally due and payable. One or more deficiency determinations of the amount of tax due for a period or periods may be made. When a person discontinues engaging in a business, a deficiency determination may be made at any time within three years thereafter as to any liability arising from engaging in such business whether or not a deficiency determination is issued prior to the date the tax would otherwise be due. Whenever a deficiency determination is made, a notice shall be given to the person concerned in the same manner as notices of assessment are given under Section 3-18.240.
(Ord. 617 § 1, 2018)
(a)
Under
any of the following circumstances, the Tax Administrator may make
and give notice of an assessment of the amount of tax owed by a person
under this chapter at any time:
(1)
If the person has not filed a complete statement required under the
provisions of this chapter;
(2)
If the person has not paid the tax due under the provisions of this
chapter;
(3)
If the person has not, after demand by the Tax Administrator, filed
a corrected statement, or furnished to the Tax Administrator adequate
substantiation of the information contained in a statement already
filed, or paid any additional amount of tax due under the provisions
of this chapter; or
(4)
If the Tax Administrator determines that the nonpayment of any business
tax due under this chapter is due to fraud, a penalty of 25% of the
amount of the tax shall be added thereto in addition to penalties
and interest otherwise stated in this chapter and any other penalties
allowed by law.
(b)
The
notice of assessment shall separately set forth the amount of any
tax known by the Tax Administrator to be due or estimated by the Tax
Administrator, after consideration of all information within the Tax
Administrator's knowledge concerning the business and activities of
the person assessed, to be due under each applicable section of this
chapter, and shall include the amount of any penalties or interest
accrued on each amount to the date of the notice of assessment.
(Ord. 617 § 1, 2018)
The notice of assessment shall be served upon the person either
by personal delivery, or by a deposit of the notice in the United
States mail, postage prepaid thereon, addressed to the person at the
address of the location of the business or to such other address as
he or she shall register with the Tax Administrator for the purpose
of receiving notices provided under this chapter; or, should the person
have no address registered with the Tax Administrator for such purpose,
then to such person's last known address. For the purposes of this
section, a service by mail is complete at the time of deposit in the
United States mail.
(Ord. 617 § 1, 2018)
Within 30 days after the date of service the person may apply in writing to the Tax Administrator for a hearing on the assessment. If application for a hearing before the City is not made within the time herein prescribed, the tax assessed by the Tax Administrator shall become final and conclusive. Within 30 days of the receipt of any such application for hearing, the Tax Administrator shall cause the matter to be set for hearing before him or her no later than 30 days after the receipt of the application, unless a later date is agreed to by the Tax Administrator and the person requesting the hearing. Notice of such hearing shall be given by the Tax Administrator to the person requesting such hearing not later than five days prior to such hearing. At such hearing said applicant may appear and offer evidence why the assessment as made by the Tax Administrator should not be confirmed and fixed as the tax due. After such hearing the Tax Administrator shall determine and reassess the proper tax to be charged and shall give written notice to the person in the manner prescribed in Section 3-18.240 for giving notice of assessment.
(Ord. 617 § 1, 2018)
(a)
If
a business is unable to comply with any tax requirement due to a disaster,
the business may notify the Tax Administrator of this inability to
comply and request relief from the tax requirement;
(b)
The
Tax Administrator, in its sole discretion, may provide relief from
the cannabis business tax requirement for businesses whose operations
have been impacted by a disaster if such tax liability does not exceed
$5,000. If such tax liability is $5,001 or more than such relief shall
only be approved by the City Council;
(c)
Temporary
relief from the cannabis tax may be relieved for a reasonable amount
of time as determined by the Tax Administrator in order to allow the
cannabis business time to recover from the disaster;
(d)
The
Tax Administrator may require that certain conditions be followed
in order for a cannabis business to receive temporary relief from
the cannabis business tax requirement;
(e)
A
cannabis business shall not be subject to an enforcement action for
a violation of a cannabis business requirement in which the licensee
has received temporary relief from the Tax Administrator;
(f)
For
purposes of this section, "disaster" means fire, flood, storm, tidal
wave, earthquake, or similar public calamity, whether or not resulting
from natural causes.
(1)
The cannabis business must notify the Tax Administrator in writing
a request for temporary relief from imposition of the tax requirement
pursuant to subsection (a) of this section of such disaster clearly
indicates why relief is requested from, the time period for which
the relief is requested, and the reasons relief is needed for the
specified amount of time;
(2)
The cannabis business agrees to grant the Tax Administrator or his
or her designee access to the location where the cannabis business
has been impacted due to a disaster.
(Ord. 617 § 1, 2018)
The conviction and punishment of any person for failure to pay
the required tax shall not excuse or exempt such person from any civil
action for the tax debt unpaid at the time of such conviction. No
civil action shall prevent a criminal prosecution for any violation
of the provisions of this chapter or of any State law requiring the
payment of all taxes.
(Ord. 617 § 1, 2018)
Any person violating any of the provisions of this chapter shall
be guilty of a misdemeanor.
(Ord. 617 § 1, 2018)
If any provision of this chapter, or its application to any
person or circumstance, is determined by a court of competent jurisdiction
to be unlawful, unenforceable or otherwise void, that determination
shall have no effect on any other provision of this chapter or the
application of this chapter to any other person or circumstance and,
to that end, the provisions hereof are severable.
(Ord. 617 § 1, 2018)
All remedies and penalties prescribed by this chapter or which
are available under any other provision of the Atascadero Municipal
Code and any other provision of law or equity are cumulative. 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 of this chapter.
(Ord. 617 § 1, 2018)
This chapter may be repealed or amended by the City Council
without a vote of the people to the extent allowed by law. However,
as required by Article XIII C of the California Constitution, voter
approval is required for any amendment that would increase the rate
of any tax levied pursuant to this chapter. The people of the City
of Atascadero affirm that the following actions shall not constitute
an increase of the rate of a tax:
(a)
The
restoration of the rate of the tax to a rate that is no higher than
that set by this chapter, if the City Council has acted to reduce
the rate of the tax;
(b)
An
action that interprets or clarifies the methodology of the tax, or
any definition applicable to the tax, so long as interpretation or
clarification (even if contrary to some prior interpretation or clarification)
is not inconsistent with the language of this chapter; or
(c)
The
collection of the tax imposed by this chapter even if the City had,
for some period of time, failed to collect the tax.
(Ord. 617 § 1, 2018)
