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O 548 ORDINANCE NO. 548 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ARROYO GRANDE REPEALING CHAPTERS 5.04, 5.08, 5.12, 5.20, 5.32, 5.40, 5.48, 5.76 AND ADDING A NEW CHAPTER 5.02 OF THE ARROYO GRANDE MUNICIPAL CODE REGARDING BUSINESS LICENSE PROCEDURES AND PRACTICES NOW, THEREFORE, THE CITY COUNCil OF THE CITY OF ARROYO GRANDE DOES ORDAIN AS FOllOWS: SECTION 1: Chapters 5.04, 5.08, 5.12, 5.20, 5.32, 5.40,5.48, and 5.76 of Title 5 of the Arroyo Grande Municipal Code are hereby repealed and replaced with Chapter 5.02, as shown in Exhibit A attached hereto and incorporated by this reference as though set forth in full. SECTION 2: If any section, subsection, subdivision, paragraph, sentence, clause or phrase of this Ordinance or any part thereof is for any reason held to be unlawful, such decision shall not affect the validity of the remaining portion of this Ordinance or any part thereof. The City Council hereby declares that it would have passed each section, subsection, subdivision, paragraph, sentence, clause, or phrase thereof, irrespective of the fact that anyone or more section, subsection, subdivision, paragraph, sentence, clause or phrase be declared unlawful. SECTION 3: A summary of this Ordinance shall be published in a newspaper published and circulated in the City of Arroyo Grande at least five (5) days prior to the City Council meeting at which the proposed Ordinance is to be adopted. A certified copy of the full text of the proposed Ordinance shall be posted in the offICe of the Director of Administrative Services/Deputy City Clerk. Within fifteen (15) days after adoption of the Ordinance, the summary with the names of those City Council members voting for and against the Ordinance shall be published again, and the Director of Administrative Services/Deputy City Clerk shall post a certified copy of the full text of such adopted Ordinance. This Ordinance shall take effect and be in full force and effect thirty (30) days after its passage. On motion of Council Member Costello, seconded by Council Member Dickens, and on the following roll call vote, to wit: AYES: Council Members Costello, Dickens, Lubin and Mayor Ferrara NOES: None ABSENT: Council Member Runels the foregoing Ordinance was passed and adopted this 11 th day of November 2003. ORDINANCE 548 PAGE 2 TONY ATTEST: - - 0:ttOflL-. KELLY RE, DIRECTOR OF ADMINISTRATIVE SERVICESI DEPUTY CITY CLERK APPROVED A$ TO CONTENT: S~TYMANAGER APPROVED AS TO FORM: TTORNEY EXHIBIT" A" CHAPTER 5.02 BUSINESS LICENSE PROVISIONS 5.02.010. Purpose. The provisions of the business license fees are enacted solely to raise revenue for general municipal purposes and are not intended for regulations. 5.02.020. Business License Certificates Required. Business licenses are hereby imposed upon all businesses, professions, trades, vocations, enterprises, establishments, occupations, or calling conducting business in the City to which a business license may lawfully apply, a yearly base rate amount plus a per employee fee, each respectively specified by City Council resolution. It shall be unlawful for any person to transact and carry on any business, trade, vocation, enterprise, establishment, occupation, or calling in the City not otherwise exempt without first having procured a business license certificate from the City or complying with all of the applicable provisions of this Chapter. The business license certificate shall be evidence only of the fact that such business license fee has been paid. Neither the payment of the business license fee nor the possession of the business license certificate shall authorize, permit, or allow the doing of any act which the person paying or holding such business license certificate would not otherwise be entitled to do; nor shall it be construed as permission to conduct or carry on a business at any place within the City where the conducting or carrying on a business in such a manner as to create or maintain a nuisance. . 5.02.030. Exemptions. The following persons and organizations are exempt from the provision of this Chapter: A. Minors Under The Age Of 18. Businesses owned and conducted by minors under the age of eighteen (18) years shall be exempt from the business license fee provisions of this Chapter where all of the following conditions exist and legal documentation is provided to support that: 1. All persons engaged in the operation of the business are under the age of 18 years old. 2. All persons engaged in the operation of the business have a bona fide ownership interest in the business. B. Charitable, Religious, And Nonprofit Organizations. 1. Organization Activities. The provisions of this Chapter shall not be deemed or construed to require the payment of a business licenses fee to conduct, manage, or carry on any business, occupation, or activity of any institution or organization recognized by a tax board of the State with a "Statement of Domestic Non Profit Organization" or the Internal Revenue Service of the United States which is conducted wholly for the benefit of charitable, religious, or nonprofit purposes and. from which profit is not derived, either directly or indirectly, by any person. 2. Nonexempt activities. The exemption provisions of this section shall not be construed to extend to any person, business, corporation, or organization receiving a fee, wage, stipend, salary, remuneration, compensation, or pay for the performance of ORDINANCE 548 EXHIBIT "A" PAGE 2 any business, occupation, or activity related to exempt organization activities, occupation, or activity being undertaken. C. Banks And Insurance Companies. Section 27 of Article XIII of the Constitution of the State of California provides exemption from the business license fee to banks, national banking associations, insurance companies, and insurance associations. D. Conflicts With Federal And State laws Or Contractual Agreements. The provisions of this Chapter shall not be construed to require a person to obtain a business license certificate prior to doing business within the City if such requirement conflicts with the applicable statues, laws, or constitution of the United States or the State of California or other contractual obligations or franchise agreements. The Financial Services Director may develop administrative guidelines concerning exemptions, apportionment, and any other matters that he/she determines as necessary for the lawful and effective implementation of this Chapter. 5.02.040. Definitions. For the purposes of this Chapter, unless otherwise apparent from the context, certain words and phrases used in this Chapter are defined as follows: A. "Business" shall mean and include professions, trades, vocations, rentals, leases, enterprises, establishments, and occupations and all and every kind of calling, any of which is conducted for the purpose of earning in whole, or in part, a profit or livelihood, whether or not a profit or a livelihood actually is earned thereby, whether paid in money, goods, labor, or otherwise, and whether or not the business has a fixed place of business in the City. B. "Financial Services Director" shall mean the individual designated by the City Manager to collect business license fees pursuant to the provisions of this Chapter. C. "Employee" means all persons engaged in the operation or conduct of any business, whether as owner, any member of the owner's family, partner, agent, manager or solicitor, and any and all other persons employed or working in such business whose name appears on the company payroll. D. "Person" shall mean and include all domestic and foreign corporations, associations, syndicates, joint-stock corporations, partnerships of every kind, clubs, Massachusetts trust, business, and other common law trusts, societies, and individuals transacting and carrying on any business in the City, other than an employee. E. 'Within the City" means within the corporate limits of the City as they now exist, or may hereafter be made to exist, by subsequent exclusion or addition. 5.02.050. General Business License Fees. Generally the business license fees shall be imposed as follows: A. The owner or manager shall pay a yearly general business licenses base rate established by City Council resolution; and B. A fee for each employee, partner or other associate at a rate established by City Council resolution. ORDINANCE 548 EXHIBIT "A" PAGE 3 5.02.060. Specific Business License Fees. The following specific business will be charged at a separate rate established by City Council resolution: A. Billboards B. Commercial Auctions C. Hospitals and Rest Homes D. Motels and Hotels D. Public Utilities E. Taxicabs F. Trailer Parks and Mobilehome Parks G. Contractors 5.02.070. Business License Certificate Applications. Every person required to have a business license certificate pursuant to the provisions of this Chapter shall make a written application to the Financial Services Director and submit the following information. A. The nature or kind of business for which the business license certificate is requested; B. The place where the business is to be conducted and, if the business is not to be conducted at a permanent location, the residence address, identified as such, of the owners of the business; C. If the application is made for the issuance of a business license certificate to a person to do business under a fictitious name, the names, social security numbers, and residence addresses of the owners of the business; D. If the application is made for the issuance of a business license certificate to a corporation or partnership, the names, franchise license fee number, and residence addresses of the officers or partners thereof; and E. Any further information that the Federal or State taxing authority or the Financial Services Director may require to enable the issuance of the business license certificate. 5.02.080. Business License Approval Process. A. Each business license application for a business to be conducted within a building shall be approved by the fire, health and planning departments to ensure conformance of with existing zoning, building, fire, health, and other public safety laws. B. Such review shall take place before the issuance of the license and prior to the operation of said business. C. Community development department approval shall be granted only after zoning and building officials have approved the license application. 5.02.090. Business License Certificate Renewals. A. The annual business license fee shall be due and payable to the City on the first day of January of each year and shall be delinquent (30) days thereafter. ORDINANCE 548 EXHIBIT" A" PAGE 4 B. No renewal of a business license certificate shall be issued until payment in full of all delinquent business licenses fees, including accrued interest, and applicable penalties thereon are received by the City. It shall be the responsibility of the applicant to ensure renewal of the business license certificate. 5.02.100. Nontransferable License. No license issued pursuant to the provisions of this title shall be transferred or assigned, nor shall such license be construed as authorizing any person other than the licensee to engage in the licensed business. 5.02.110. Business License Content. All business license certifi.cates required by the provisions of this Chapter, unless otherwise provided in this Chapter, shall be prepared and issued by the Financial Services Director upon payment to the City of the proper amount of business license fees. Each business license certificate shall state upon the face thereof the following: A. The name of the person to whom the business license certificate is issued. B. The type of business. C. The location or address of the business. D. The date of the expiration of the business license certificate. E. That the business license certificate when issued shall be the receipt for the business license fee paid to the City. F. That the possession of the business license certificate shall not authorize, permit or allow the person to do any act that such person would not otherwise be lawfully entitled to do. 5.02.120. Business License Posting And Keeping. All business license certificates issued pursuant to the provisions of this Chapter shall be posted and kept in the following manner: A. Any persons transacting and carrying on business at a permanent location in the City shall keep such business license certificate posted in a conspicuous place upon the premises where such business is carried on. B. Any persons transacting and carrying on business, but not operating at a permanent location in the City, shall keep such business license certificate upon them at all times while transacting and carrying on such business. 5.02.130. Business License Duplicates. A duplicate business license certificate may be issued by the Financial Services Director to replace any business license certificate previously issued pursuant to the provisions of this Chapter, which business license certificate has been lost or destroyed, upon the filing of a statement of such fact and the payment of a duplicate fee set by resolution of the City Council. 5.02.140. Branch Establishments. ORDINANCE 548 EXHIBIT "A" PAGE 5 A separate business license certificate shall be issued for each branch establishment or location of business; provided, however, warehouses and distributing plants used in connection with, and incidental to, a business charged pursuant to the provisions of this Chapter shall not be deemed to be separate places of businesses or branch establishments; and provided further, any person conducting two (2) or more types of businesses at the same location and under the same management, or at different locations, but which businesses use a single set or integrated set of books and records, may elect to pay only one business license fee, except that a fee set by resolution of the City Council shall be paid upon issuance for each additional branch or location. 5.02.150. Change Of Location. No business license fee certificate issued pursuant to the provisions of this Chapter shall be transferable; provided, however, where a business license certificate is issued for a person to transact and carry on a business at a particular place, such person, upon an application therefore and the payment of a fee set by resolution of the City Council, may have the business license certificate reissued for transacting and Carrying on of such business under such business license certifICate at some other location to which it is to be moved. 5.02.160. Certification Of Records. A. Conclusiveness Of Statements. No statement required by the provisions of this Chapter shall be conclusive as to the matters set forth therein, nor shall the filing of such statements preclude the City from collecting by appropriate action such sums as are actually due and payable pursuant to the provisions of this Chapter. Such statements and each of the several items therein contained shall be subject to certification by the Financial Services Director, the deputies of the Financial Services Director, or authorized employees or representatives of the City, who are hereby authorized to examine such books and records of any certificate holder or applicant for a business license certificate as may be necessary in their judgment to verify or I ascertain the amount of the business license fee due. I B. Record Retention. All persons subject to the provisions of this Chapter shall I keep complete records of all business transactions and shall retain such records for , I examination by the Financial Services Director, the deputies of the Financial Services I Director, or authorized employees or representatives of the City, and maintain them for I a period of at least three years from the annual due date of the federal tax retum. r f f Records, which shall be maintained for audit purposes, shall include State and Federal payroll tax returns, schedules and records included in such retums, and any and all work papers used to prepare such returns. C. Examination Of Records. All business license certificate holders, applicants ~ for business license certificates, and persons engaged in business in the City are ! hereby required to permit an examination of such books and records for the purposes I t set forth in this section during regular business hours and at reasonable times. r I ! f ORDINANCE 548 EXHIBIT "A" PAGE 6 D. Determination Of License Fee Amounts Due. If any person subject to the fee imposed by this Chapter fails to submit information required, or if the Financial Services Director is not satisfied with records and statements filed, the Financial Services Director shall determine the amount of the business license fee due from such person by means of such information as may be obtainable and shall mail a notice of the amount so assessed by serving it personally or by depositing it in the United States Post Office at Arroyo Grande, California, postage prepaid, addressed to the person at their last-known address. A mistake made in stating the amount of the business license fee shall not, in any case prevent or prejudice the Financial Services Director from collecting what is actually due from any person or entity carrying on a trade, calling, profession, or occupation subject to a business license under this Chapter. 5.02.170. Information Confidential. It shall be unlawful for the Financial Services Director or designee, or any person having an administrative duty pursuant to the provisions of this Chapter, to make known in any manner whatever the business affairs, operations, or other information obtained by an investigation of the records of any person required to obtain a business license certificate, or pay a business license fee, or any other person visited or examined in the discharge of the official duty of the Financial Services Director except as follows: A. Disclosure to, or the examination of records and equipment by, another City official, employee, or agent for the collection of fees for the sole purpose of administering or enforcing the provisions of this . Chapter or collecting the business license fee imposed by the provisions of this Chapter. B. The disclosure of information to, or the examination of records by, Federal or State officials, or the officials of another city or county, if the reciprocal arrangement exists, or to a grand jury or court of law under a subpoena; C. The disclosure of information and the results of examination or records of particular licensees, or relating to particular licensees, to a court of law for proceedings brought to determine the existence of the amount of any business license fee liability of such particular licensees of the City; D. The disclosure, after the filing of a written request to the effect, to the licensee, or to the license licensees' successors, receivers, trustees, executors, administrators, assignees, or guarantors if directly interested, of information as to items included in the measure of any paid business license fee, any unpaid business license fee, or any amount of business license fee required to be collected, including interest and penalties; further provided, however, that the City Attorney shall approve each disclosure, and the Financial Services Director or designee may refuse to make any disclosure referred to in this subsection when, in their opinion, the public interest would suffer thereby; E. The disclosure of the names and business addresses of persons to whom business license certificates have been issued and the general type and nature of their business; ORDINANCE 548 EXHIBIT "A" PAGE 7 F. The disclosure, by way of public meeting or otherwise, of such information as may be necessary to the City Council in order to permit the City Council to be fully advised as to the facts if a license fee payer files a claim for the refund of business license fees, or submits an offer of compromise with regard to a claim asserted against them by the City for business license fees, or when acting upon any other similar matter; and G. The disclosure of general statistics regarding business licenses collected or business done in the City. 5.02.180. Financial Services Director Adjustment Powers. The Financial Services Director shall have the power, for good cause shown, and documented by the Financial Services Director as a permanent record: A. To extend the time for filing any required sworn statement; B. To waive any penalties which would otherwise have accrued; C. To adjust the amount of the business license fee due; D. To make refunds for prorations of license fees paid. 5.02.190. Debt To City. The amount of any business license fee and penalty imposed by the provisions of this Chapter shall be deemed a debt to the City. A suit may be brought against any person to enforce the collection of the debt described in this Chapter in any could of competent jurisdiction. The conviction of any person for transacting any business without a certificate shall not excuse or exempt such person from payment of any license due or unpaid at the time of such conviction and nothing herein shall prevent a criminal prosecution for any violation of the provisions of this Chapter. 5.02.200. Delinquencies And Penalties. For failure to pay the business license fee required by the provisions of this Chapter prior to the delinquency date, the Financial Services Director shall add a penalty of 10% of the business license on the first day of each month after the delinquency thereof; provided, however, the total amount of such penalty to be added in no event shall exceed one hundred (100%) of the amount of the business license fee due. 5.02.210. Enforcement. A. Duties Of The Financial Services Director And Chief Of Police. It shall be the duty of the Financial Services Director to enforce each and all of the provisions of this Chapter, and the Chief of Police shall render such assistance in such enforcement as may from time to time be required by the Financial Services Director. B. Inspections. The Financial Services Director, in the exercise of the duties imposed by the provisions of this section, and acting through deputies of duly authorized assistants, shall have the right to enter and examine all places of business ORDINANCE 548 EXHIBIT" A" PAGE 8 free of charge during normal business hours to ascertain whether the provisions of this Chapter are being complied with. C. Penalty For Violation. Any person who violates any provision of 5.02.020 by transacting and carrying on any business, trade, vocation, enterprise, establishment, occupation, or calling in the City without first having procured a business license certificate from the City or without complying with all of the applicable provisions of this Chapter is guilty of a misdemeanor and is subject to punishment as provided for in Section 1.16.010 of this Municipal Code. 5.02.220. Evidence Of Doing Business. When any person, by the use of a sign, circular, card, telephone book, newspaper, other publication, or advertising media, shall advertise, hold out, or represent that they are in business in the City, or when any person holds an active license or permit issued by a government agency indicating that they are conducting a business in the City, and such person fails to deny, by a sworn statement given to the Financial Services Director or designee, that they are not conducting a business in the City after being requested to do so by the Financial Services Director or designee, that these facts shall be considered prima facie evidence that such person is conducting a business in the City. 5.02.230. Remedies Cumulative. All remedies prescribed by the provisions of this Chapter shall be cumulative, and 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. OFFICIAL CERTIFICATION I, KELL Y WETMORE, Director of Administrative Services/Deputy City Clerk of .the City of Arroyo Grande, County of San luis Obispo, State of California, do hereby certify under penalty of perjury, that the attached is a true, full, and correct copy of Ordinance No. 548 which was introduced at a regular meeting of the City Council on October 28, 2003; was passed and adopted at a regular meeting of the City Council of the City of Arroyo Grande on the 11 th day of November 2003; and was duly published in accordance with State law (G.C. 40806). - WITNESS my hand and the Seal of the City of Arroyo Grande affixed this 12th day of November, 2003. ~. ()Jdv~M- KELLY W MO E, DIRECTOR OF ADMINISTRATIVE SERVICESI DEPUTY CITY CLERK -~-_...._._-