The following words and phrases whenever used in this chapter shall be construed as defined in this section unless from the context a different meaning is intended.
"Caterer"
means a person who prepares food at a business site, for compensation, for consumption off the business premises but within the corporate limits of the City.
"Combination facility"
has the same meaning as defined in Oregon Administrative Rule 333-150-000(8) which the State of Oregon Department of Agriculture licenses or inspects under Oregon Administrative Rule 333-158-000.
"Recorder"
means the City Recorder of the City of Yachats, or designee.
"Food"
includes all meals and beverages, excluding alcoholic beverages, served in a restaurant including "takeout," "to go" or delivered orders. For purposes of a restaurant that is a grocery store, market, convenience store or deli section of any store, food is all prepared food and beverage which has been altered (other than solely by cooling) by preparing, combining, dividing, heating or serving, so that the food or beverage is available and intended for immediate human consumption, such as hot foods, operator prepared sandwiches and salads, and fountain drinks, whether the food is prepared by the operator onsite or at the specific direction of the operator at an off-site location controlled by the operator.
"Operator"
means the person who is proprietor of the restaurant, whether in the capacity of owner, lessee, sublessee, mortgagee in possession, licensee or any other capacity. Where the operator is a corporation, the term operator shall also include each and every member of the board of directors of such corporation for the time involved.
"Restaurant"
means any establishment required to be licensed as a restaurant, mobile unit or pushcart by the State of Oregon Health Division and includes any establishment where food or beverage is prepared or available for consumption by the public or any establishment such as a grocery store, market, convenience store or deli section of any store where the public obtains food or beverage prepared on or off premises in form or quantity consumable then and there, whether or not it is consumed within the confines of the premises where served or purchased, and also includes establishments which prepare food or beverage in consumable form for service outside the premises where prepared. The term restaurant also includes establishments where such food or beverage is prepared in a combination facility. The term restaurant does not include a restaurant licensed by the State of Oregon Health Division as a limited service restaurant.
(Ord. 262, 2006; Ord. 293, 2010; Ord. 305, 2011)
A. 
The City imposes and levies, in addition to all other taxes, fees and charges of every kind, a tax upon:
1. 
Unless specifically exempt under Section 3.12.030 below, all food and beverages sold by restaurants located within the City to the public, except for whole cakes, pies, and loaves of bread if purchased for consumption off premises, and for alcoholic beverages;
2. 
All food and beverages, except alcoholic beverages, sold by a caterer for an event located within the City; and
3. 
The following items sold by combination facilities:
a. 
Salads from salad bars,
b. 
Dispensed soft drinks and coffee, and
c. 
Sandwiches or hot prepared foods ready for immediate consumption.
d. 
The following items, including toppings or additions, scooped or otherwise placed into a cone, bowl or other container for immediate consumption whether or not they are consumed within the confines of the premises where scooped or placed: any frozen dessert regulated by the Oregon State Department of Agriculture under ORS 621.311 and any ice cream, ice milk, sherbet or frozen yogurt. No tax shall be imposed under this subsection, however, on any item whose volume exceeds one-half gallon.
e. 
Any other food mixed, cooked or processed on the premises in form or quantity for immediate consumption whether or not it is consumed within the confines of the premises where prepared.
4. 
The following items sold by combination facilities that are bakeries:
a. 
All those items listed in paragraphs A.3.a through d of this section;
b. 
All bakery products sold for consumption on the premises; and
c. 
All "takeout" or "to go" orders of bakery products prepared on the premises except for whole cakes, pies, and loaves of bread and any order consisting of six or more bakery products.
B. 
Such tax shall be imposed at a rate of 5% on the total amount charged by the seller for the food and beverages, or for the meal. In the computation of this tax any fraction of one-half cent or more shall be treated as one cent.
C. 
All taxes collected by the City under this chapter shall be used for financing of improvements to the sanitary or storm sewer systems or the water system.
D. 
The Council may increase the rate of the tax described in subsection A of this section after a public hearing. Notice of the hearing shall be given by publication in a newspaper of general circulation in the City at least 10 days prior to the date of the public hearing.
(Ord. 262, 2006; Ord. 293, 2010)
The tax levied by Section 3.12.020 shall not be collected or assessed on food or beverages:
A. 
Sold by public or private schools or colleges, except that food sold by independent contractor operators at such schools or colleges shall be subject to the tax imposed by this chapter.
B. 
Provided by hospitals.
C. 
Provided by bed and breakfast establishments and motels to their guests, if the package is taxed in its entirety through the occupancy tax code in Chapter 3.08.
D. 
Sold in vending machines.
E. 
Sold in temporary restaurants including food stands, booths, street concessions and similar type operations, operated by Yachats community based non-profit organizations or service clubs.
F. 
Served in connection with overnight or residential facilities—including, but not limited to, convalescent homes, nursing homes, retirement homes—if the food and beverage are provided as part of the cost of sleeping accommodations.
G. 
Provided by Yachats community based nonprofit tax-exempt organizations.
H. 
Sold for resale to the public.
I. 
Sold in bulk to the public for non-immediate consumption off the premises such as ice cream packed in a container that exceeds one-half gallon.
J. 
Which are candy, popcorn, nuts, chips, gum or other confections but not including ice cream, frozen yogurt, cakes, pies or other desserts.
K. 
Food or beverages in grocery stores, markets and the like which is not defined under Section 3.12.010.D or F as prepared foods or beverages.
(Ord. 262, 2006; Ord. 293, 2010)
Each operator shall collect the tax imposed by this chapter, to the same extent and at the same time as the amount for the food or beverage is collected from every purchaser. The amount of tax need not be separately stated from the amount of the food or beverage. Every operator required to collect the tax imposed in this chapter shall be entitled to retain 5% of all taxes collected to defray the costs of collections and remittance.
(Ord. 262, 2006; Ord. 329 § 1, 2014)
A. 
On or after July 1, 2007 (fiscal year 2007-2008) every operator shall make a return to the Recorder 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). Returns are delinquent on the first day of the month following (in the months of May, August, November and February). The returns shall be on forms provided by the City, specifying the total sales for each month in the quarter on a separate line, with a total for the quarter.
B. 
The person required to file the return shall remit the amount of the tax due, to the tax administrator at his or her office, either by personal delivery or by mail before the last day of the month following each quarter of collection.
C. 
A return shall not be considered filed until it is actually received by the Recorder. Payments received by the Recorder for application against existing liabilities will be credited toward the period designated by the taxpayer under conditions which are not prejudicial to the interest of the City. A condition which is considered prejudicial is the imminent expiration of the statute of limitations for a period or periods. Non-designated 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.
D. 
The Recorder, when in the Recorder's discretion determines that it will be in the best interest of the City, may specify that a different order of payment credit should be followed with regard to a particular tax or factual situation. The Recorder may establish shorter reporting periods for any operator if the Recorder deems it necessary in order to insure collection of the tax and the Recorder may require further information in the return relevant to payment of the liability. When a shorter return period is required, 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.
E. 
All taxes collected by operators pursuant to this chapter shall be held in trust for the account of the City until payment is made to the Recorder. A separate trust bank account is not required in order to comply with this provision.
(Ord. 262, 2006; Ord. 335, 2015)
A. 
Any operator who fails to remit any portion of any tax imposed by this chapter within the time required, shall pay a penalty of 10% of the amount of the tax and a delinquency fee of $100, in addition to the amount of the tax.
B. 
Any operator who fails to pay any delinquent remittance on or before a period of 30 days following the date on which the remittance first became delinquent shall pay an additional 10% for each 30 day period the tax remains delinquent.
C. 
If the Recorder determines that the nonpayment of any remittance 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 the penalties stated in subsections A and B of this section.
D. 
Every penalty imposed under the provisions of this section shall become a part of the tax required to be paid.
E. 
Notwithstanding Section 3.12.020(C), all sums collected pursuant to the penalty provisions in subsections A, B and C of this section shall be used for financing of improvements to the sanitary or storm sewer systems or the water system.
(Ord. 262, 2006; Ord. 335, 2015)
If any operator should fail to make, within the time provided in this chapter, any report of the tax required by this chapter, the Recorder 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 Recorder shall procure such facts and information as is able to be obtained, upon which to base the assessment of any tax imposed by this chapter and payable by any operator, the Recorder shall proceed to determine and assess against such operator the tax, interest and penalties provided for by this chapter. In case such determination is made, the Recorder 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 operator so assessed at the last known place of address. Such operator may make an appeal of such determination as provided in Section 3.12.080. If no appeal is filed, the Recorder's determination is final and the amount thereby is immediately due and payable.
(Ord. 262, 2006)
Any operator aggrieved by any decision of the Recorder with respect to the amount of such tax, interest and penalties, if any, may appeal to the City Council by filing a notice of appeal with the Recorder within 30 days of the serving or mailing of the determination of tax due. The Council shall fix a time and place for hearing such appeal, and the Recorder shall give five days' written notice of the time and place of hearing to such operator at the last known place of address. The Council shall hear and consider any records and evidence presented bearing upon the Recorder's determination of amount due, and make findings affirming, reversing or modifying the determination. The findings of the Council shall be final and conclusive, and shall be served upon the appellant in the manner prescribed above for service of notice of hearing. Any amount found to be due shall be immediately due and payable upon the service of notice.
(Ord. 262, 2006)
It shall be the duty of every operator liable for the collection and payment to the City of any tax imposed by this chapter to keep and preserve, for a period of three years, all such records as may be necessary to determine the amount of such tax. The Recorder shall have the right to inspect all records at all reasonable times.
(Ord. 262, 2006)
A. 
Whenever the amount of any tax, interest or penalty has been overpaid or paid more than once, or has been erroneously or illegally collected or received by the City under this chapter, it may be refunded as provided in subsection B 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 Recorder within one year of the date of payment. The claim shall be on forms furnished by the Recorder.
B. 
The Recorder 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 Recorder shall notify the claimant in writing of the Recorder'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 Recorder to be a valid claim, an operator may claim a refund, or take as credit against taxes collected and remitted, the amount overpaid, paid more than once or erroneously or illegally collected or received in a manner prescribed by the Recorder. The operator shall notify recorder of claimant's choice no later than 15 days following the date recorder mailed the determination. In the event claimant has not notified the Recorder of claimant's choice within the 15-day period and the operator is still in business, a credit will be granted against the tax liability for the next reporting period, if the operator is no longer in business, a refund check will be mailed to claimant at the address provided in the claim form.
C. 
No refund shall be paid under the provisions of this section unless the claimant established the right by written records showing entitlement to such refund and the Recorder acknowledged the validity of the claim.
(Ord. 262, 2006)
Any tax required to be paid by any operator under the provisions of this chapter shall be deemed a debt owed by the operator to the City. Any such tax collected by an operator which has not been paid to the City shall be deemed a debt owed by the operator to the City. Any person owing money to the City under the provisions of this chapter shall be liable to an action brought in the name of the City of Yachats for the recovery of such amount.
If no appeal is filed within 30 days of serving or mailing a tax deficiency notice, the deficiency for taxes identified shall become a lien against the real property used as a restaurant by the operator. The Recorder shall cause a lien to be entered in the lien docket of the City.
In addition to other remedies provided in this chapter, the City may submit deficiencies to a collection agency. In the event the City turns over a deficient tax account to a collection agency, the City may add to the amount owing an amount equal to the collection agency fees, not to exceed 25% of the outstanding tax owing. The City shall provide notice as may be required by state law.
(Ord. 262, 2006; Ord. 306, 2011)
Any operator or other person who fails or refuses to comply as required herein, or to furnish any return required to be made, or fails or refuses to furnish a supplemental return or other data required by the Recorder, or who renders a false or fraudulent return or claim, or who fails, refuses or neglects to remit the tax to the City by the due date, is guilty of a Class A infraction under Section 1.12.070 of the Yachats Municipal Code.
(Ord. 262, 2006)
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 chapter. Nothing in this section shall prohibit:
A. 
The disclosure of the names and addresses of any person(s) who are operating a restaurant; or
B. 
The disclosure of general statistics in a form which would prevent the identification of financial information regarding an individual operator; or
C. 
Presentation of evidence to the court, or other tribunal having jurisdiction in the prosecution of a claim by the Recorder or an appeal from the Recorder for amount due the City under this chapter.
(Ord. 262, 2006)
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 it for that purpose, any books, papers, records, or memoranda, including copies of operator's State and Federal income tax return, bearing upon the matter of the operator's tax return.
(Ord. 262, 2006)
This chapter shall take effect on the 30th day after adoption, as provided in the 2005 Yachats Charter. Collection of taxes shall not commence, however, until July 1, 2007, the first day of the 2007-2008 fiscal year, payable as set forth in Section 3.12.050 of this chapter.
(Ord. 262, 2006)