Newark Municipal Code Ch. 5.04 Business Licenses

The ordinance codified in this chapter shall be known as the "business license ordinance of the city of Newark."

(Ord 123.4 § 3, 1979; Ord. 123.1, 1979)

For the purpose of this chapter, the words set out in this section shall have the following meanings:

A. "Business" means professions, trades, and occupations and all and every kind of calling whether or not carried on for profit.

B. "City" means the city of Newark, California.

C. "Gross receipts" means 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 a 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 to be sold, the cost of the materials used, labor or service costs, interest paid or payable, or losses or other expenses whatsoever. Excluded from "gross receipts" shall be cash discounts allowed and taken on sales; credit allowed on property accepted as part of the purchase price and which property may later be sold; 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 property returned by purchasers upon recision of the contract of sale as is refundable therein cash or by credit 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; that portion of the receipts of a general contractor which represent payments to sub-contractors, provided that such subcontractors are licensed under this chapter, and provided the general contractor furnishes the collector with the names and addresses of the subcontractors and the amounts paid each subcontractor.

D. "Person" means all domestic and foreign corporations, associations, syndicates, joint stock corporations, partnerships of every kind, clubs, Massachusetts, business, or common law trusts, societies, and individuals transacting and carrying on any business in the city, other than as an employee.

(Ord. 123.1 § 1, 1970)

This chapter is enacted solely to raise revenue for municipal purposes, and is not intended for regulation.

(Ord. 123.1 § 2, 1970)

Persons required to pay a license tax for transacting and carrying on any business under this chapter shall not be relieved from the payment of any license tax or permit fee for the privilege of doing such business required under any other ordinance of the city, and shall remain subject to the regulatory provisions of other ordinances.

(Ord. 123.1 § 3, 1970)

Neither the adoption of the ordinance codified in this chapter nor its superseding of any portion of any other ordinance of the city shall in any manner be construed to affect prosecution for violation of any other ordinance committed prior to the effective date of the ordinance codified in this chapter, nor be construed as a waiver of any license or any penal provisions applicable to any such violation, nor be construed to affect the validity of any bond or cash deposit required by any ordinance to be posted, filed, or deposited, and all rights and obligations thereunto appertaining shall continue in full force and effect.

(Ord. 123.1 § 4, 1970)

A. There are imposed upon the businesses, trades, professions, callings and occupations specified in this chapter license taxes in the amount prescribed in this chapter. It is unlawful for any person to transact and carry on any business, trade, profession, calling or occupation in the city without first having procured a license from the city so to do or without complying with any and all applicable provisions of this chapter.

B. This section shall not be construed to require any person to obtain a license prior to doing business within the city if such requirement conflicts with applicable statutes of the United States or of the state.

C. Persons not required to obtain a license prior to doing business within the city because of conflict with applicable statutes of the United States or of the state shall be liable for payment of the tax imposed by this chapter.

(Ord. 123.1 § 5, 1970)

A separate license must be obtained for each branch establishment or location of the business transacted and carried on and for each separate type of business at the same location, and each license shall authorize the licensee to transact and carry on only the business licensed thereby at the location or in the manner designated in such license; provided, that warehouses and distributing plants used in connection with and incidental to a business licensed under the provisions of this chapter shall not be deemed to be separate places of business or branch establishments.

(Ord. 123.1 § 6, 1970)

A. Conflict with Constitution. Nothing in this chapter shall be deemed or construed to apply to any person transacting and carrying on any business exempt by virtue of the Constitution or applicable statutes of the United States or of the state from the payment of such taxes as are prescribed in this chapter.

B. Charitable and Nonprofit Organizations. The provisions of this chapter shall not be deemed or construed to require the payment of a license tax to conduct, manage, or carry on any business, occupation, or activity from any institution or organization which is conducted, managed, or carried on wholly for the benefit of charitable purposes or from which profit is not derived, either directly or indirectly, by any individual; nor shall any license tax be required for the conducting of any entertainment, concert, exhibition, or lecture on scientific, historical, literary, religious, or moral subjects within the city whenever the receipts of any such entertainment, concert, exhibition, or lecture are to be appropriated to any church or school or to any religious or benevolent purpose; nor shall any license tax be required for the conducting of any entertainment, dance, concert, exhibition, or lecture by any religious, charitable, fraternal, educational, military, state, county, or municipal organization or association whenever the receipts of any such entertainment, dance, concert, exhibition, or lecture are to be appropriated for the purpose and objects for which such organization or association was formed and from which profit is not derived, either directly or indirectly, by any individual; provided, however, that nothing in this section shall be deemed to exempt any such organization or association from complying with any of the provisions of this chapter or any other ordinance of the city requiring a permit to conduct, manage or carry on any profession, trade, calling or occupation. However, only those organizations exempt from the California Bank and Corporations Tax pursuant to the provisions of Section 23701(b), 23701(d), 23701(f) and 23701(l) shall be exempt from the business license tax imposed on carnival or circus performances. Further, the organization shall be exempt for only one carnival or circus performance per calendar year.

C. Disabled Veterans. No license tax payable under this chapter shall be payable by any person who has received an honorable discharge or release from active duty in one of the United States armed services, who is physically unable to obtain a livelihood by manual labor, and who is a voter of this state.

D. Interstate Commerce. Every person claiming to be entitled to exemption from payment of any license fee provided for in this chapter upon the grounds that the imposition of such fee casts an unlawful burden upon his right to engage in commerce with foreign nations or among the several states or conflicts with the regulation of interstate commerce by the United States, shall file a verified statement with the city clerk disclosing the interstate or other character of his business entitled to such exemption. Such statement shall state the name and location of the person for which the orders are to be solicited or secured, the name of the nearest local or state manager, if any, and his address, the kind of goods, wares, merchandise or services to be delivered or performed, the place from which the same are to be shipped or forwarded or the services performed, the method of solicitation or taking orders, the location of any warehouse, factory or plant within the state, the method of delivery, the name and residence of the applicant, and all other facts necessary to establish such claim of exemption. A copy of the order blank, contract form or other papers used by such person taking orders shall be attached to the affidavit. If it appears that the application is entitled to such exemption, such applicant shall forthwith be issued a free license.

E. Farmers and Poultrymen. The provisions of this chapter shall not be construed as requiring farmers, poultrymen, or horticulturists to procure a license under this chapter for the privilege of selling exclusively their own produce. This exemption shall not apply to nurseries or other commercial establishments who buy foods for resale as well as selling their own produce. However, this requirement is not intended to relieve such activities of use permit provisions contained in zoning or other regulatory provisions of the city.

F. Boardinghouses, Apartments, Motels and Trailer Parks.

1. The provisions of this chapter shall not be deemed or construed to require the payment of a license fee to conduct the activity of renting rooms, houses, apartments or other dwelling units unless there are more than four such units or any combination thereof rented by the owner or landlord.

2. Any person claiming an exemption shall file a verified statement or sworn affidavit with the city clerk on a form supplied by the city clerk stating the facts upon which exemption is claimed. The city clerk shall, upon a proper showing contained in the verified statement or sworn affidavit, issue a license to such person claiming exemption without payment to the city of the license tax required by this chapter. In all cases of doubt as to any applicant being entitled to an exemption from any license tax, or from the application of any of the provisions of this chapter, the burden of establishing the right of such exemption shall be upon the applicant. All applications for exemption in such cases shall be referred to the city clerk, who shall consider and act upon the same and grant or refuse such exemption as in the use of his discretion he shall deem just.

(Ord. 183 § 2, 1983; Ord. 123.1 § 7, 1970)

A. Every person required to have a license under the provisions of this chapter shall make application for the same to the city clerk, and upon the payment of the prescribed license tax the city clerk shall issue to such person a license which shall contain:

1. The name of the person to whom the license is issued;

2. The business licensed;

3. The place where such business is to be transacted and carried on;

4. The date of the expiration of such license; and

5. Such other information as may be necessary for the enforcement of the provisions of this chapter.

B. It shall further be required that upon issuance of a license in an establishment where such business has not before been conducted that an inspection be made of the premises by the fire chief or his designated representative to assure compliance with the fire code and as inspection be made by the building official or his designated representative to assure compliance with the building code and the zoning ordinance of the city. Such inspection shall be made within five working days of the date of application.

(Ord. 123.1 § 8, 1970)

A. Upon a person making application for the first license to be issued under this chapter or for a newly established business, in all cases where the amount of license tax to be paid is measured by gross receipts, such person shall furnish to the city clerk, for his guidance in ascertaining the amount of license tax to be paid by the applicant, a written statement, upon a form provided by the city clerk, sworn to before a person authorized to administer oaths, setting forth such information as may be therein required and as may be necessary to determine the amount of the license tax to be paid by the applicant.

B. If the amount of the license tax to be paid by the applicant is measured by gross receipts, he shall estimate the gross receipts for the period to be covered by the license to be issued. Such estimates, if accepted by the city clerk as reasonable, shall be used in determining the amount of license tax to be paid by the applicant.

(Ord. 123.1 § 9, 1970)

In all cases, the applicant for the renewal of a license shall submit to the city clerk for his guidance in ascertaining the amount of the license tax to be paid by the applicant, a written statement, upon a form to be provided by the city clerk, written under penalty of perjury, or sworn to before a person authorized to administer oaths, setting forth such information concerning the applicant's business during the preceding year as may be required by the city clerk to enable him to ascertain the amount of the license tax to be paid by the applicant pursuant to the provisions of this chapter.

(Ord. 123.1 § 10, 1970)

A. No statements shall be conclusive as to the matters set forth therein, nor shall the filing of the same preclude the city from collecting by appropriate action such sum as is actually due and payable under this chapter. Such statement and each of the several items therein contained may be audited by a certified public accountant of the firm's choice and evidence thereof submitted to the city clerk. In the event that the business does not provide verification by a certified public accountant, the city clerk, his deputies, or authorized employees of the city, are authorized to examine, and audit and inspect such books and records of any licensee or applicant for license, as may be necessary in their judgment to verify or ascertain the amount of license fee due. All licensees, applicants for licenses, and persons engaged in business in the city are required to permit as examination of such books and records for the purposes aforesaid.

B. The information furnished or secured pursuant to this section or Sections 5.04.100 or 5.04.110 of this chapter shall be confidential. Any unauthorized disclosure or use of such information by any officer or employee of the city shall constitute a misdemeanor and such officer or employee shall be subject to the penalty provisions of this chapter, in addition to any other penalties provided by law.

(Ord. 123.1 § 11, 1970)

If any person fails to file any required statement within the time prescribed, or if after demand therefor made by the city clerk, he fails to file a corrected statement, the city clerk may determine the amount of license tax due from such person by means of such information as he may be able to obtain.

(Ord. 123.1 § 12, 1970)

In addition to all other power conferred upon him, the city clerk shall have the power, for good cause shown, to extend the time for filing any required sworn statement or application for a period not exceeding thirty days, and in such case to waive any penalty that would otherwise have accrued; and shall have the further power, with the consent of the council, to compromise any claims as to amount of license tax due.

(Ord. 123.1 § 13, 1970)

No license issued pursuant to this chapter 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 paying a fee of one dollar have the license amended to authorize the transacting and carrying on of such business under said license at some other location to which the business is or is to be moved.

(Ord. 123.1 § 14, 1970)

Where a license has been issued by the city for any business and the tax or fee paid therefor under the provisions of any ordinances heretofore enacted and the term of such license has not expired, then the license fee prescribed for said business by the chapter shall not be payable until the expiration of the term of such unexpired license.

(Ord. 123.1 § 15, 1970)

A duplicate license may be issued by the city clerk to replace any license previously issued under this chapter which has been lost or destroyed upon the licensee filing statement of such fact, and at the time of filing such statement paying to the city clerk a duplicate license fee of one dollar.

(Ord. 123.1 § 16, 1970)

Every person having a license under the provisions of this chapter for engaging in business at a fixed place of business, shall keep such license posted for exhibition while in force in some conspicuous part of the place of business. Every person having such a license, and not having a fixed place of business, shall carry such license with him at all times while carrying on the business for which the same is granted. Every person having a license shall produce and exhibit the same, when applying for renewal thereof, and whenever requested to do so by any police officer, or by any person authorized to issue or inspect licenses or collect license fees.

(Ord. 123.1 § 17, 1970)

A. An annual license issued under the provisions of this chapter shall be for a calendar year except where otherwise provided for in this chapter.

B. All annual license fees shall be due and payable on the first day of the period covered by the license; and if not paid within thirty days after the due date, shall be deemed delinquent and subject to a penalty of twenty percent. For new businesses, such fees shall be payable in advance before the transaction of business and if not paid within five days after written demand by the city clerk, shall be delinquent and subject to a penalty of twenty percent.

C. For failure to pay a license tax when due, the city clerk shall add a penalty of twenty percent of the license tax on the last day of each month after the due date thereof, providing that the amount of such penalty to be added shall in no event exceed fifty percent of the amount of the license tax due.

(Ord. 123.1 § 18, 1970)

All business license fees shall be as established by the city council by resolution pursuant to this chapter.

(Ord. 123.3 § 1, 1973: Ord. 123.1 §§ 19—28, 30, 31, 1970)

A. It shall be the duty of the city clerk, and he is directed to enforce each and all of the provisions of this chapter, and the chief of police shall render such assistance in the enforcement of this chapter as may from time to time be required by the city clerk or the city council.

B. The city clerk in the exercise of the duties imposed upon him under this chapter, and acting through his deputies or duly authorized assistants, shall examine or cause to be examined all places of business in the city to ascertain whether the provisions of this chapter have been complied with.

C. The city clerk and each and all of his assistants and any police officer shall have the power and authority to enter, free of charge, and at any reasonable time any place of business required to be licensed, by this chapter, and demand an exhibition of its license certificate. Any person having such license certificate theretofore issued, in his possession or under his control, who wilfully fails to exhibit the same on demand, shall be guilty of a misdemeanor and subject to the penalties provided for by the provisions of this chapter. It shall be the duty of the city clerk and each of his assistants to cause a complaint to be filed against any and all persons found to be violating any of such provisions.

(Ord 123.1 § 32, 1970)

Any person aggrieved of any decision of the city clerk with respect to the issuance or refusal to issue a license may appeal to the city manager within five days after such decision. Appellant shall set forth the facts upon which it is claimed that the decision is erroneous and the city manager shall within five days grant the appellant a hearing at which time he may affirm or modify the decision of the city clerk. Any person aggrieved with the decision of the city manager may appeal to the city council within five days in writing, setting forth all the facts upon which it is claimed that the decision of the city manager is erroneous. Such appeal to the city council must be made in writing within five days after the decision of the city manager. The city council shall set the matter for the hearing and its clerk shall give notice of the time and place of such hearing to appellant. The city council shall decide on questions raised by the appellant and its decision shall be final. No such determination by the city council shall conflict with any substantive provisions of this chapter.

(Ord. 123.1 § 33, 1970)

The amount of any license tax and penalty imposed by the provisions of this chapter shall be deemed a debt to the city. An action may be commenced in the name of the city in any court of competent jurisdiction, for the amount of any delinquent license tax and penalties.

(Ord. 123.1 § 34, 1970)

All remedies prescribed under 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.

(Ord. 123.1 § 35, 1970)

Violation or failure to comply with any provision of this chapter shall constitute an infraction and shall be punishable in accordance with the provisions set forth in Chapter 1.16 of this code.

(Ord. 270 § 1, 1990: Ord. 123.1 § 36, 1970)