HomeMy WebLinkAbout2009-07-14; City Council; 19895; Business licence compliance issuesCITY OF CARLSBAD - AGENDA BILL
AB# 19,895
MTG. 7/14/2009
DEPT. CA
BUSINESS LICENSE- COMPLIANCE
WITH FEDERAL, STATE, AND LOCAL
i A i4/o A Am /^nrtfAi A AIS^J^C*LAWS AND ORDINANCES
DEPT. HEAD
CITY ATTY. /^~
CITY MGR. <&
RECOMMENDED ACTION:
Introduce Ordinance No. cs-043 of the City Council of the City Of Carlsbad, California,
amending Chapter 5.04 to preclude the City from knowingly issuing a business license for any
enterprise or purpose that is contrary to federal, state or local laws and ordinances.
ITEM EXPLANATION:
One of the goals, as set by the Carlsbad City Council, is to develop and implement proactive
strategies to ensure the financial health of the Community and the City. One of the City's many
revenue sources is business license tax; a tax imposed upon persons engaged in certain
businesses within the City limits. Business license tax guidelines are outlined in Carlsbad
Municipal Code Chapters 5.04 and 5.08.
California Government Code section 37100 provides that a legislative body of a city may enact
ordinances that are "not in conflict with the Constitution and laws of the State or the United
States." This ordinance requires that the City will not knowingly issue a business license for any
enterprise or purpose that is contrary to federal, state, or local laws or ordinances.
FISCAL IMPACT:
There is no direct fiscal impact associated with this action.
ENVIRONMENTAL IMPACT:
Pursuant to Public Resources Code section 21065 and CEQA Guidelines 15378, this ordinance
does not constitute a "project" within the meaning of CEQA and, therefore, does not require
environmental review.
EXHIBITS:
1.
2.
Ordinance No. CS-043
C.M.C. Section 5.04
DEPARTMENT CONTACT: Ron Ball 760-434-2891
FOR CITY CLERKS USE ONLY.
COUNCIL ACTION:APPROVED
DENIED
CONTINUED
WITHDRAWN
AMENDED
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D
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CONTINUED TO DATE SPECIFIC D
CONTINUED TO DATE UNKNOWN D
RETURNED TO STAFF D
OTHER-SEE MINUTES D
EXHIBIT 1
1 ORDINANCE NO. CS-043
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF CARLSBAD, CALIFORNIA, ADDING SECTION 5.04.1603 TO CHAPTER 5.04 TO THE CARLSBAD MUNICIPAL CODE
4 WHEREAS, the Carlsbad City Council concurs that it is necessary to add
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9 for any enterprise or purpose that is contrary to federal, state or local laws or
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Section 5.014.160 to Chapter 5.04 of the Carlsbad Municipal Code establishing a
requirement that a business licensed to operate in the City of Carlsbad must comply
with all local, state and federal laws; and
WHEREAS, the City of Carlsbad will not knowingly issue a business license
WHEREAS, California Government Code section 37100 provides that a
12 legislative body of a city may enact ordinances that are "not in conflict with the
13 Constitution and laws of the State or the United States."
14 THEREFORE, the City Council of the City of Carlsbad, California, does ordain
15 , „as follows:
"1 f\SECTION 1: That Chapter 5.04 of the Carlsbad Municipal Code is amended by the
addition of Section 5.04.160 to read as follows:
18 Chapter 5.04 LICENSING BUSINESS GENERALLY
Sections:
5.04.010 Definitions.
5.04.020 License required.
5.04.025 Temporary amnesty period.
5.04.030 Violations.
5.04.040 License nontransferable except for changed location.
5.04.050 Duplicate licenses.
5.04.060 Separate license for each place of business.
5.04.070 Posting and display of license.
5.04.080 Exemptions.
5.04.085 Constitutional apportionment.
5.04.090 Appeals to council.
5.04.100 Unlawful operation or nuisance.
5.04.110 Vested rights.
5.04.120 Refusal to issue to hazardous businesses-Appeal.
5.04.130 Adjustments.
5.04.140 Permits or franchises in lieu of prescribed licenses.
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EXHIBIT 1
5.04.150 Administration.
5.04.160 Businesses, operations or uses contravening state or federal law.
5.04.160 Businesses, operations or uses contravening state or federal law.
Notwithstanding anv provision in this Code to the contrary, any business,
operation or use that cannot be conducted or carried out without being in violation
of state or federal law shall be prohibited in all planning areas, districts, or zones
within the citv.
EFFECTIVE DATE: This ordinance shall be effective thirty days after its
adoption; and the city clerk shall certify the adoption of this ordinance and cause it to
be published at least once in a newspaper of general circulation in the City of
Carlsbad within fifteen days after its adoption.
INTRODUCED AND FIRST READ at a regular meeting of the Carlsbad City
Council on the I4tb day of July , 2009, and thereafter
PASSED AND ADOPTED at a regular meeting of the City Council of the City
of Carlsbad on the day of , 2009, by the following vote, to wit:
AYES:
NOES:
ABSENT:
APPROVED AS TO FORM AND LEGALITY:
RONALD R. BALL, City Attorney
CLAUDE A. LEWIS, Mayor
ATTEST:
LORRAINE M. WOOD, City Clerk
(Seal)
EXHIBIT 2
Chapter 5.04 LICENSING BUSINESSES GENERALLY
Sections:
5.04.010 Definitions.
5.04.020 License required.
5.04.025 Temporary amnesty period.
5.04.030 Violations.
5.04.040 License nontransferable except for changed location.
5.04.050 Duplicate licenses.
5.04.060 Separate license for each place of business.
5.04.070 Posting and display of license.
5.04.080 Exemptions.
5.04.085 Constitutional apportionment.
5.04.090 Appeals to council.
5.04.100 Unlawful operation or nuisance.
5.04.110 Vested rights.
5.04.120 Refusal to issue to hazardous businesses-Appeal.
5.04.130 Adjustments.
5.04.140 Permits or franchises in lieu of prescribed licenses.
5.04.150 Administration.
Businesses, operations or uses contravening state or federal law.
5.04.010 Definitions.
As used in this title the following words and phrases shall have the following meanings:
(1) "Business" includes professions, trades, occupations and all and every kind of calling
whether or not carried on for profit;
(2) "Gross receipts" includes the total amount of the sale price of all sales and the total amount
charged or received for the performance of any act or service, of whatever nature it may be, for
which a charge is made or credit allowed, whether or not such act or service is done as part of
or in connection with the sale of materials, goods, wares or merchandise. Included in gross
receipts shall be all receipts, cash, credits and property of any kind or nature without any
deduction therefrom on account of the cost of the property sold, the cost of the materials used,
labor or service costs, interest paid or payable, or losses or other expenses whatsoever. Gross
receipts shall also include all receipts from coin operated vending machines. Excluded from
gross receipts shall be cash discounts allowed and taken on sales; any tax required by law to be
included in or added to the purchase price and collected from the customer or purchaser; such
part of the sale price of property returned by purchasers upon rescission of the contract of sale
as is refunded either in cash or by credit; and amounts collected for others where the business
is acting as an agent or trustee to the extent that such amounts are paid to those for whom
collected.
(Ord. 6049 § 1, 1973: Ord. 6040 § 6, 1967)
5.04.020 License required.
A. There are imposed upon persons engaged in the specified businesses in this title, within the
city limits, license taxes in the amounts hereinafter prescribed. The license tax shall be due and
payable before the commencement of any new business. A penalty charge shall accrue to any
new business without a license upon the expiration of one year, or after receiving written notice
of this requirement, whichever occurs first. Notification shall be in writing and proof of receipt
shall be retained on file by the license collector. The tax shall be increased by a penalty of
twenty-five percent of the license tax sixty days after it is due, and increased by a penalty of fifty
percent of the license tax ninety days after it is due.
B. For all previously licensed businesses the license tax shall be due and payable annually in
advance on the first day of the month in which the business was originally established. In the
event any person fails to pay a license renewal tax, the tax shall be increased by a penalty of
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EXHIBIT 2
twenty-five percent of the license tax sixty days after it is due, and increased by a penalty of fifty
percent of the license tax ninety days after it is due.
C. The finance director or his/her designee shall have the discretion to waive all or a portion of
penalties imposed for failure to obtain or renew a business license upon a showing of good
cause.
D. Nothing contained in this section shall be construed as permitting the operation of a
business, which is intended to be operated for only a limited period of time and on a
nonpermanent basis, such as athletic events, carnivals, etc., without having first obtained a
business license. Each such license shall show the number of such license, the period of time
covered thereby, the name of the person to whom issued, and the location or place where such
business is to be commenced or conducted, and upon a detachable portion of such license,
shall also show the number of such license and the amount of the fee paid therefor. No error or
mistake on the part of the license collector or any other person in the determination, stating or
collection of the amount of any license tax shall prevent or prejudice the collection by or for the
city of what shall be actually due from anyone commencing or conducting any business subject
to a license tax, nor shall the issuance of any license under this title authorize the commencing
or conducting of any business in any zone, district or location within the city, contrary to the
provisions of any zoning or other ordinance of the city.
Applications on forms prescribed by the license collector shall be filed annually by each
licensee before the issuance of a license. Any person intending to engage in the business of
owning, renting, leasing, operating, maintaining or servicing coin-operated vending machines or
newsracks shall include with the application a list of the number, type and location of such
machines.
For the purposes of determining the correct tax to be collected, the license collector may
at any time require a licensee to furnish his books of account and records for inspection and
audit and may require the production of other documents and information regarding the
business as authorized by law. Refusal by a licensee or applicant to furnish such books of
account and records upon request therefor by the license collector shall automatically revoke
any then existing business license, and shall require the license collector to refuse to issue any
further business licenses to the person so refusing. Any and all books of account and records
furnished pursuant hereto, and any and all statements made by a licensee for the purpose of
obtaining a business license shall be confidential in character and shall not be subject to public
inspection or disclosure, except in the proper proceedings before the city council or a competent
court or tribunal. It is unlawful for any person to cause to be disclosed, except as provided in this
title, any of the information required to be furnished hereunder to the license collector for
purposes of determining the correct tax to be collected.
(Ord. NS-389 § 1, 1997; Ord. NS-324 § 1, 1995; Ord. 6073 § 1, 1983; Ord. 6061 § 1 (part),
1980; Ord. 6049 § 2, 1973: Ord. 6040 § 2, 1967)
5.04.025 Temporary amnesty period.
To encourage voluntary compliance with this chapter during the city's public awareness
campaign, the city establishes a temporary amnesty period for persons or entities currently
engaged in a business that should have been but has not previously been licensed under this
chapter. Such persons or entities will not be subject to the penalties specified in Section
5.04.020(A) provided they obtain a business license prior to the end of this amnesty period and
prior to being cited for a violation under Section 5.04.030.
This section and the amnesty period shall be operative until September 30, 2000, at
which time this section and the amnesty period shall be automatically repealed.
(Ord. NS-549§ 1,2000)
/-—
EXHIBIT 2
5.04.030 Violations.
It is unlawful for any person to conduct any business within the city without first having
obtained from the city a license so to do, and each day or portion thereof of conduct of such
business constitutes a separate violation of this title.
It is unlawful for any person wilfully to make any false statement or representation for the
purpose of obtaining a business license pursuant to the provisions of this title.
(Ord. 6040 §3, 1967)
5.04.040 License nontransferable except for changed location.
No license issued pursuant to this title shall be transferable; provided, that where a
license is issued authorizing a person to transact and carry on a business at a particular place,
such licensee may upon application therefor and the paying a fee of one dollar have the license
amended to authorize the transacting and carrying on of such business under the license at
some other location to which the business is or is to be moved.
(Ord. 6040 §4, 1967)
5.04.050 Duplicate licenses.
Upon receipt of an affidavit filed in the office of the license collector, by or on behalf of
any licensee, stating that any license has been lost or destroyed, the license collector shall
issue a duplicate of such license to the licensee therein named. A charge of one dollar shall be
made for each such duplicate license issued, which sum shall be paid into the treasury of the
city to the credit of the general fund.
(Ord. 6061 § 1 (part), 1980; Ord. 6040 § 5, 1967)
5.04.060 Separate license for each place of business.
A separate license must be obtained for each branch establishment or separate place of
business in which the business licensed is commenced or conducted within the city, except that
in the case of vending machines and newsracks only one license per owner/operator need be
obtained. Each license shall authorize the licensee named therein to commence or conduct only
that business described in such license and only at the location or place indicated therein;
provided, however, that where a license is herein imposed on any business the gross receipts
or sales of which are made the basis for fixing the amount of the license fee of such license, a
separate license fee shall be paid for each branch establishment or separate place of business
in which such business is commenced or conducted, based upon the gross receipts or sales of
such branch establishment or separate place of business.
(Ord. NS-324 § 2, 1995; Ord. 6040 § 6, 1967)
5.04.070 Posting and display of license.
All persons conducting businesses within the city at fixed places shall post their licenses
issued under this title, except for the detachable portions thereof showing the fees paid, at such
places of business.
In all instances in which a license is required under this title for the use of any vehicle,
equipment, contrivance or device, the license shall be attached to the vehicle, equipment,
contrivance or device. Any person conducting business within the city shall, upon demand
therefor by the license collector or properly designated city employee, exhibit his license for
inspection.
(Ord. 6061 § 1 (part), 1980; Ord. 6040 § 7, 1967)
EXHIBIT 2
5.04.080 Exemptions.
Nothing in this title shall be deemed or construed to apply to any person conducting any
of the following businesses:
(1) Any business exempt by virtue of the United States Constitution or statutes of the United
States or of the state of California from the payment of such taxes as are prescribed in this title;
(2) Any business conducted under a written franchise from the city;
(3) Any business which is conducted, managed or carried on only for charitable, fraternal or
educational purposes, or from which profit is not derived, either directly or indirectly, by any
person.
(Ord. 6040 §8, 1967)
5.04.085 Constitutional apportionment.
None of the license tax as provided for by Chapters 5.04 and 5.08 shall be so applied as
to occasion an undue burden upon interstate commerce or be violative of the equal protection
and due process clauses of the Constitutions of the United States and the state of California.
In any case where a license tax is believed by licensee or applicant for a license to place
an undue burden upon interstate commerce or to be violative of such constitutional clauses, the
licensee or applicant may apply to the city council for an adjustment of the tax. Such application
may be made before, at, or within six months after payment of the prescribed license tax. The
burden of proving an undue burden upon interstate commerce or a violation of the equal
protection or due process clauses of the Constitutions of the United States and the state of
California shall be upon the applicant. The decision of the city council shall be final.
(Ord. 6063 §1, 1981)
5.04.090 Appeals to council.
In the event of a dispute between an applicant or licensee and the license collector
regarding the classification of any business under this title or the amount of the license fee to be
paid therefor, then any such applicant or licensee or the license collector/city attorney, may
appeal to the city council to hear and determine such matter. The appeal shall be taken by
addressing a communication to the council in writing, briefly stating the question involved. The
communication shall be presented to the city council at a council meeting within thirty days of its
receipt, at which meeting the city council shall hear such evidence with reference to the subject
thereof as may be offered and may continue the hearing from time to time. The findings and
decisions of the council after hearing and considering such evidence shall be binding, final and
conclusive as to the classification of the business and the amount of license fee involved under
this title. Pending the hearing on any such appeal filed by an applicant for a license under this
title, no license shall be issued for the business involved in such controversy unless the
classification assigned thereto by the license collector is accepted in the meantime and the
license fee therefor paid as provided in this title. Such acceptance and payment shall be
deemed made under protest and subject to decision of the council and such adjustment, if any,
as the council may order. Appeals by a licensee must be taken within ten days after the
issuance of the license constituting the basis of appeal, and if not so taken shall be waived, and
thereafter shall not be considered by the council.
(Ord. 6061 § 1 (part), 1980; Ord. 6040 § 9, 1967)
5.04.100 Unlawful operation or nuisance.
The granting of a license under this title shall not be deemed in any sense whatsoever a
permit or license to conduct the business referred to therein, in any unlawful manner, or in any
manner so as to constitute the same a nuisance.
(Ord. 6040 §10, 1967)
EXHIBIT 2
5.04.110 Vested rights.
No provision of this title or any license issued under this title, shall give any vested right
pursuant to any license issued, or required to be issued, thereunder, either as to the rates or
amounts of license fees, or the terms and durations thereof, and any and all matters provided
therein are and shall be subject to repeal, amendment, alteration and change to become
effective at the end of any license period, and all licenses for such purposes shall be subject to
such ordinances of the city as the city may from time to time establish; provided, that if any
license is revoked, the amount of the license fee paid shall be proportioned accordingly, and the
proportional part for the unexpired part of the term of such license shall be repaid to the licensee
within ten days after written demand, or at the licensee's option, credited upon any other license
required of him.
(Ord. 6040 §11, 1967)
5.04.120 Refusal to issue to hazardous businesses-Appeal.
Notwithstanding any of the other provisions of this title, in all those cases where
application is made for a license for a business which from its general nature, or the materials,
goods, wares, merchandise or commodities handled, or to be handled, constitutes, in the
opinion of the license collector, a potential fire hazard, or public safety hazard, the license
collector may refuse to issue a license for such business unless and until there has been filed
with him, in writing, from the community development director and from the fire chief, statements
approving the location indicated therefor. The applicant shall have the right of appeal to the city
council from any refusal of the license collector to issue any such license under the provisions of
this section, such appeal to be made and heard in substantially the same manner as
hereinabove contemplated for appeals under Section 5.04.090.
(Ord. NS-676 § 3 (part), 2003; Ord. 1261 § 5 (part), 1983; Ord. 6061 § 1 (part), 1980; Ord. 6040
§12,1967)
5.04.130 Adjustments.
If it is found that an additional license fee amount is required from any licensee, the
license collector shall bill the licensee for such amount and such amount shall be paid by the
licensee within ten days after the billing. It is unlawful for any licensee to continue to conduct
any business within the city if he is billed as provided in this chapter for an additional license fee
and fails to pay such additional license fee within ten days after such billing. In the event it is
found that any licensee has paid a license fee amount in excess of that required, the licensee
may submit a request for refund to the license collector, who shall investigate the request and
forward the request and recommendation to the city manager, if the amount of the requested
refund is five hundred dollars, or less, or to the city council, if the amount of the requested
refund is in excess of five hundred dollars. At the request of the licensee, the license collector
may, in the license collector's discretion, apply a refund in an amount less than five hundred
dollars, or a portion thereof, to the next ensuing license fee payable by such licensee for such
business. No minimum license fee, or any portion of such minimum fee shall be refunded.
The city manager and the city council reserve the right to pass upon and in their
discretion either grant or refuse to grant refunds or amounts, or portions thereof, paid as license
fees over and above the minimum fee, after ascertaining the facts in each particular case where
requests or demand for refund is made or presented.
(Ord. 6061 § 1 (part), 1980; Ord. 6060 § 1, 1979: Ord. 6040 § 13, 1967)
EXHIBIT 2
5.04.140 Permits or franchises in lieu of prescribed licenses.
In those cases where any other ordinance of the city prescribing a registration or license
fee relates to a particular business, or classification therein referred to, then and in all such
cases the particular registration or license fees prescribed by such other ordinance shall be paid
and shall be in lieu of the business license fees. It is the purpose and intention of the city council
that every business, which is lawfully subject to the payment of a business license tax shall pay
such a tax, but in no case to require a duplication of such business license fees or taxes.
Nothing contained in this section, however, shall be construed as relating to permits or other
fees required to be paid under the building, electricity and plumbing chapters* or permits or
other fees required to be paid in connection with such matters as building, plumbing, electrical
and similar permits or plan checking fees, as all such fees are in addition to the license taxes or
registration charges imposed by this and other ordinances of the city.
(Ord. 6040 §14, 1967)
* Building, electrical and plumbing codes can be found in Title 18 of this code.
5.04.150 Administration.
The city manager shall be responsible for the administration and enforcement of this
chapter and may adopt such written procedures as are necessary for its efficient administration.
The city manager's decisions may be appealed within ten calendar days of the date of the
decision to the city council, whose decision shall be final. Fees for appeal shall be established
by resolution of the city council.
(Ord. NS-549 § 2, 2000)
5.04.160 Businesses, operations or uses contravening state or federal law.
Notwithstanding anv provision in this Code to the contrary anv business, operation or
use that cannot be conducted or carried out without being in violation of state or federal law
shall be prohibited in all planning areas, districts, or zones within the citv.