Salinas Municipal Code § 19-7 Constitutional apportionment

For the purposes of this chapter, the following words and phrases shall have the meanings respectively ascribed to them by this section:

Average Number of Persons Employed. The average number of persons employed daily in the applicant's business during the previous year within the city shall be determined by ascertaining the total number of hours of service performed by all employees of applicant within the city during the previous year, and dividing the total number of hours of service thus obtained by the number of hours of service constituting a years work of one full-time employee according to the custom or laws governing such employment. In computing the average number of persons employed, fractions of numbers shall be excluded.

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

City. The city of Salinas, a municipal corporation of the state, in its present incorporated form or in any later reorganized, consolidated, enlarged or reincorporated form.

Collector. The city finance director or other city officer charged with the administration of this chapter.

Employee. All persons engaged in the operation or conduct of any business, whether as member of the owner's family, agent, manager, solicitor and any and all other persons employed or working in such business. For purposes of computing tax based on employees, the average number of employees, as defined above, will be used.

Fixed Place of Business. The premises within the city where a business is continuously conducted from day to day and regularly kept open for the purposes of such business. The term "regular place of business" shall have the same meaning as "fixed place of business."

Gross Receipts. Includes the total of amounts actually received or receivable from sales and the total of amounts actually received or receivable 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 sold, the cost of materials used, labor or service costs, interest paid or payable, or losses or other expenses whatsoever. Excluded from "gross receipts" shall be the following:

(1) Cash discounts allowed and taken on sales;

(2) Credit allowed on property accepted as part of the purchase price and which property may later be sold;

(3) Any tax required by law to be included in or added to the purchase price and collected from the consumer or purchaser;

(4) 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;

(5) 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, provided the agent or trustee has furnished the collector with the names and addresses of the others and the amounts paid to them;

(6) Receipts of refundable deposits, except that refundable deposits forfeited and taken into income of the business shall not be excluded;

(7) As to a retail gasoline dealer, a portion of his receipts from the sale of motor vehicle fuels equal to the motor vehicle fuel license tax imposed by and previously paid under the provisions of part 2 of division 2 of the Revenue and Taxation Code of the state;

(8) As to a retail gasoline dealer, the special motor fuel tax imposed by section 4041 of Title 26 of the United States Code if paid by the dealer or collected by him from the consumer or purchaser;

(9) As to dealers in new and used automobiles, boats, motorcycles, trucks, tractors, trailers and farm machinery, fifty per cent of the annual gross receipts over fifty-thousand dollars from the sale or service of new and used automobiles, boats, motorcycles, trucks, tractors, trailers and farm machinery.

Itinerant Vendor. All persons, both principal and agent, who engage in a temporary and transient business in the city selling goods, wares and merchandise, and who, for the purpose of carrying on such business, hire, lease or occupy any room, building or structure for the exhibition or sale of such goods, wares or merchandise, or from which room, building or structure the sales shall be made or business solicited by means of samples or deliveries from house to house; and the persons so engaged shall not be relieved from the provisions of this section by reason of associating temporarily with any local dealer, trader, merchant or auctioneer, or by conducting such temporary or transient business in connection with, or as a part of, or in the name of any local dealer, trader, merchant or auctioneer.

Peddler. Any hawker, vendor or other person who goes from house to house or place to place, or in or along the streets, within the city, selling and making immediate delivery, or offering for sale and immediate delivery, of any goods, wares, merchandise, or anything of value, in possession of the peddler, to persons other than manufacturers, wholesalers, jobbers or retailers in such commodities.

Person. Includes all domestic, foreign, and professional corporations, associations, syndicates, joint stock corporations, partnerships of every kind, clubs, Massachusetts trusts, business, or common law trusts, societies, and individuals transacting and carrying on any business in the city, other than as a salaried employee as defined below.

Retail Business. Every business conducted for the purpose of selling or offering to sell any goods, wares or merchandise, other than as a part of a "wholesale business" as herein defined.

Salaried Employee. An individual employed on a fixed reimbursement or commission basis who does not have a substantive ownership interest in the business. Salaried employees do not include corporate officers nor business partners who share in the profits of the business through distribution of corporate or partnership dividends, whether or not such officers or partners are in receipt of executive salaries.

Sale. Includes the transfer, in any manner or by any means whatsoever, of title to property for a consideration; the serving, supplying or furnishing for a consideration of any property; and a transaction whereby the possession of property is transferred and the seller retains the title as security for the payment of the price shall likewise be deemed a sale. The foregoing definitions shall not be deemed to exclude any transaction which is, or which in effect results in, a sale within the contemplation of law.

Solicitor. Every agent, canvasser, or other person who travels from place to place or house to house and solicits or takes orders for, or canvasses for, or makes demonstrations of any goods, wares, merchandise, or things or articles of value, or advertising, or for services to be performed in the future, or for subscriptions to periodicals or tickets of admission to entertainments or memberships in any clubs.

Sworn Statement. An affidavit sworn to before a person authorized to take oaths, or a declaration or certification made under penalty of perjury.

Transient Business. Every business not conducted at a "fixed place of business" or at a regular place of business, whether the person conducting such transient business is or is not a resident of the city.

Wholesale Business. Every business conducted solely for the purpose of selling goods, wares or merchandise in wholesale lots for resale.

(Ord. No. 1353 (NCS), § 1; Ord. No. 1444 (NCS), § 1.)

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

(Ord. No. 1353 (NCS), § 1.)

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 for the privilege of doing such business required under any ordinance of the city, and shall remain subject to the regulatory provisions of other ordinances.

(Ord. No. 1353 (NCS), § 1.)

There are hereby imposed upon the businesses, trades, professions, callings and occupations specified in this chapter license taxes in the amounts hereinafter prescribed. It shall be 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 and paying the tax hereinafter prescribed or without complying with any and all applicable provisions of this chapter.

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. Persons not so required to obtain a license prior to doing business within the city nevertheless shall be liable for payment of the tax imposed by this chapter.

(Ord. No. 1353 (NCS), § 1.)

A separate license must be obtained by 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; and provided, further, that any person conducting two 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, at his option, pay only one tax calculated on all gross receipts of the businesses under the schedule that applies to the type of business of such person which requires the highest percentage payment on such gross receipts, except that a license fee of one hundred dollars for each such additional branch, type or location shall be paid upon issuance.

(Ord. No. 1353 (NCS), § 1; Ord. No. 2231 (NCS), § 1; Ord. No. 2271 (NCS) § 2; Ord. No. 2431 (NCS), § 1.)

When any person shall by use of signs, circulars, cards, telephone book or newspapers advertise, hold out or represent that he is in business in the city, or when any person holds an active license or permit issued by a governmental agency indicating that he is in business in the city, or when any person makes a sale, takes an order, renders a commercial service or performs any other similar act within the city, and such person fails to deny by a sworn statement given to the collector that he is not conducting a business in the city, after being requested to do so by the collector, then these facts shall be considered prima facie evidence that he is conducting a business in the city.

(Ord. No. 1353 (NCS), § 1.)

None of the license taxes provided for by this chapter 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.

In any case where a license tax is believed by a licensee or applicant for a license to place an undue burden upon interstate commerce or be violative of such constitutional clauses, he may apply to the collector 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 applicant shall, by sworn statement and supporting testimony, show his method of business and the gross volume or estimated gross volume of business and such other information as the collector may deem necessary in order to determine the extent, if any, of such undue burden or violation. The collector shall then conduct an investigation and, after having first obtained the written approval of the city attorney, shall fix as the license tax for the applicant an amount that is reasonable and nondiscriminatory or, if the license tax has already been paid, shall order a refund of the amount over and above the license tax so fixed. In fixing the license tax to be charged, the collector shall have the power to base the license tax upon a percentage of gross receipts or any other measure which will assure that the license tax assessed shall be uniform with that assessed on businesses of like nature, so long as the amount assessed does not exceed the license tax as prescribed by this chapter. Should the collector determine the gross receipts measure of license tax to be the proper basis, he may require the applicant to submit, either at the time of termination of applicant's business in the city or at the end of each three month period, a sworn statement of the gross receipts and pay the amount of license tax therefor; provided, that no additional license tax during any one calendar year shall be required after the licensee shall have paid an amount equal to the annual license tax as prescribed in this chapter.

(Ord. No. 1353 (NCS), § 1.)

(a) Charitable Purposes. The provisions of this article shall not 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 and from which profit is not derived, either directly or indirectly, by any individual.

(b) Benefit Activities. The provisions of this article shall not require the payment of a license tax for the conducting of any entertainment, concert, exhibition or lecture on scientific, historical, literary, benevolent 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 benevolent purpose.

(c) Nonprofit Activities. The provisions of this chapter shall not require the payment of a license tax for the conducting of any entertainment, dance, concert, exhibition or lecture by any benevolent, 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.

(d) Part-Time Occupations. The provisions of this chapter shall not apply to any natural person engaged in the business, trade, occupation or calling of part-time gardener, janitor, handyman, household servant or similar domestic worker, or to any minor under the age of eighteen or adult over the age of sixty-five engaged in any part-time occupation; provided, that the gross income of such natural person, minor or adult over sixty-five from the business, trade, occupation or calling does not exceed one thousand six hundred and forty dollars per annum.

(e) Disabled Veterans. Any veteran who is unable to obtain a livelihood by manual labor due to physical disability may, at the discretion of the collector, obtain a license to hawk or peddle any goods, wares or merchandise without payment of any license tax, by applying to the license inspector and producing a certificate from a local physician showing the applicant to be physically disabled, evidence of being a legal voter of the state, and a copy of an honorable discharge.

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 herein prescribed.

(Ord. No. 1353 (NCS), § 1; Ord. No. 2431 (NCS), § 2.)

Every person required to have a license under the provisions of this chapter shall make application as hereinafter prescribed for the same to the collector of the city, and upon the payment of the prescribed license tax the collector shall issue to such person a license which shall contain the following information:

(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.

(Ord. No. 1353 (NCS), § 1.)

Upon a person's making application for the first license to be issued hereunder or for a newly established business, and upon payment of the application fee established by Chapter 11B of this Code, such person shall furnish to the collector a sworn statement, upon a form provided by the collector, setting forth the following information:

(1) The exact nature or kind of business for which a license is requested;

(2) The place where such business is to be carried on and, if the same is not to be carried on at any permanent place of business, the places of residence of the owners of same;

(3) In the event that application is made for the issuance of a license to a person doing business under a fictitious name, the application shall set forth the names and places of residence of those owning such business;

(4) In the event that the application is made for the issuance of a license to a corporation or a partnership, the application shall set forth the names and places of residence of the officers or partners thereof;

(5) In all cases where the amount of license tax to be paid is measured by gross receipts, the application shall set 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;

(6) If the amount of the license tax to be paid by the applicant is based upon the average number of employees, such application shall set forth the average number of employees for the applicable period;

(7) Any further information which the collector may require to enable him to issue the type of license applied for.

If the amount of the license tax to be paid by the applicant is measured by gross receipts or average number of employees, he shall estimate the gross receipts or average number of employees for the period to be covered by the license to be issued. Such estimate, if accepted by the collector as reasonable, shall be used in determining the amount of license tax to be paid by the applicant; provided, however, the amount of the license tax so determined shall be tentative only, and such person shall, within thirty days after the expiration of the period for which such license was issued, furnish the collector with a sworn statement, upon a form furnished by the collector, showing the gross receipts or average number of employees during the period of such license, and the license tax for such period shall be finally ascertained and paid in the manner provided by this chapter for the ascertaining and paying of renewal license taxes for other businesses, after deducting from the payment found to be due the amount paid at the time such first license was issued.

The collector shall not issue to any such person another license for the same or any other business, until such person shall have furnished to him the sworn statement and paid the license tax as herein required.

(Ord. No. 1353 (NCS), § 1; Ord. No. 2226 (NCS), § 1.)

In all cases, the applicant for the renewal of a license shall submit to the collector, for his guidance in ascertaining the amount of the license tax to be paid by the applicant, a sworn statement, upon a form to be provided by the collector, setting forth such information concerning the applicant's business during the preceding year as may be required by the collector to enable him to ascertain the amount of the license tax to be paid by such applicant pursuant to the provisions of this chapter.

(Ord. No. 1353 (NCS), § 1.)

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 hereunder. Such statement and each of the several items therein contained shall be subject to audit and verification by the collector, his deputies, or authorized employees of the city, who are hereby authorized to examine, 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 persons subject to the provisions of this chapter shall keep complete records of business transactions, including sales, receipts, purchases and other expenditures, and shall retain all such records for examination by the collector. Such records shall be maintained for a period of at least three years. No person required under this section to keep records shall refuse to allow authorized representatives of the collector to examine such records at reasonable times and places.

(Ord. No. 1353 (NCS), § 1.)

It shall be unlawful for the collector or any person having an administrative duty under the provisions of this chapter to make known in any manner whatever the business affairs, operations or information obtained by an investigation of records and equipment of any person required to obtain a license or pay a license tax, or any other person visited or examined in the discharge of official duty, or the amount or source of income, profits, losses, expenditures or any particular thereof, set forth in any statement or application, or to permit any statement or application, or copy of either, or any book containing any abstract or particulars thereof, to be seen or examined by any person. Provided that nothing in this section shall be construed to prevent:

(1) The disclosure to or the examination of records and equipment by another city official, employee or agent for collection of taxes for the sole purpose of administering or enforcing any provisions of this chapter or collecting taxes imposed hereunder;

(2) The disclosure of information to, or the examination of records by, federal or state officials, or the tax officials of another city or county, or the tax officials of the city and its auditors, if a reciprocal arrangement exists, or to a grand jury or court of law, upon subpoena;

(3) The disclosure of information and results of examination of records of particular taxpayers, or relating to particular taxpayers, to a court of law in a proceeding brought to determine the existence or amount of any license tax liability of the particular taxpayers to the city;

(4) The disclosure after the filing of a written request to that effect, to the taxpayer himself, or to his successors, receivers, trustees, executors, administrators, assignees and guarantors, if directly interested, of information as to the items included in the measure of any paid tax, any unpaid tax or amounts of tax required to be collected, interest and penalties; further provided, however, that the city attorney approves each such disclosure and that the collector may refuse to make any disclosure referred to in this paragraph when in his opinion the public interest would suffer thereby;

(5) The disclosure of the names and addresses of persons to whom licenses have been issued, and the general type or nature of their business;

(6) The disclosure by way of public meeting or otherwise of such information as may be necessary to the city council in order to permit it to be fully advised as to the facts when a taxpayer files a claim for refund of license taxes, or submits an offer of compromise with regard to a claim asserted against him by the city for license taxes, or when acting upon any other matter;

(7) The disclosure of general statistics regarding taxes collected or business done in the city.

(Ord. No. 1353 (NCS), § 1.)

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

If the collector is not satisfied with the information supplied in statements or applications filed, he may determine the amount of any license tax due by means of any information he may be able to obtain.

If such a determination is made, the collector shall give a notice of the amount so assessed by serving it personally or by depositing it in the United States post office at Salinas, California, postage prepaid, addressed to the person so assessed at his last known address. Such person may, within fifteen days after the mailing or serving of such notice, make application in writing to the collector for a hearing on the amount of the license tax. If such application is made, the collector shall cause the matter to be set for hearing within fifteen days before the city council. The collector shall give at least ten days notice to such person of the time and place of hearing in the manner prescribed above for serving notices of assessment. The council shall consider all evidence produced and shall make findings thereof, which shall be final. Notice of such findings shall be served upon the applicant in the manner prescribed above for serving notices of assessment.

(Ord. No. 1353 (NCS), § 1.)

Any person aggrieved by any decision of the collector with respect to the issuance or refusal to issue such license may appeal to the council by filing a notice of appeal with the clerk of the council. The council shall thereupon fix a time and place for hearing such appeal. The clerk of the council shall give notice to such person of the time and place of hearing by serving it personally or by depositing it in the United States post office at Salinas, California, postage prepaid, addressed to such person at his last known address. The council shall have authority to determine all questions raised on such appeal. No such determination shall conflict with any substantive provision of this chapter.

(Ord. No. 1353 (NCS), § 1.)

In addition to all other power conferred upon him, the collector 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, except that five percent simple interest shall be added to any tax determined to be payable.

(Ord. No. 1353 (NCS), § 1.)

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 five dollars, have the license amended to authorize the transacting and carrying on of such business under such license at some other location to which the business is or is to be moved. Provided further that transfer, whether by sale or otherwise, to another person under such circumstances that the real or ultimate ownership after the transfer is substantially similar to the ownership existing before the transfer, shall not be prohibited by this section. For the purposes of this section stockholders, bondholders, partnerships, or other persons holding an interest in a corporation or other entity herein defined to be a person are regarded as having the real or ultimate ownership of such corporation or other entity.

(Ord. No. 1353 (NCS), § 1.)

A duplicate license may be issued by the collector to replace any license previously issued hereunder which has been lost or destroyed, upon the licensee's filing statement of such fact and, at the time of filing such statement, paying to the collector a duplicate license fee of ten dollars.

(Ord. No. 1353 (NCS), § 1; Ord. No. 2226 (NCS), § 2.)

(a) Any licensee transacting and carrying on business at a fixed place of business in the city shall keep the license posted in a conspicuous place upon the premises where such business is carried on.

(b) Any licensee transacting and carrying on business but not operating at a fixed place of business in the city shall keep the license upon his person at all times while transacting and carrying on the business for which it is issued.

(c) Whenever identifying stickers, tags, plates or symbols have been issued for each vehicle, device, machine or other piece of equipment included in the measure of a license tax, the person to whom such stickers, tags, plates or symbols have been issued shall keep firmly affixed upon each vehicle, device, machine or piece of equipment the identifying sticker, tag, plate or symbol which has been issued therefor at such locations as are designated by the collector. Such sticker, tag, plate or symbol shall not be removed from any vehicle, device, machine or piece of equipment kept in use, during the period for which the sticker, tag, plate or symbol is issued.

(d) No person shall fail to affix as required herein any identifying sticker, tag, plate or symbol to the vehicle, device, machine or piece of equipment for which it has been issued, at the location designated by the collector, nor shall any person give away, sell or transfer such identifying sticker, tag, plate or symbol to another person or permit its use by another person.

(Ord. No. 1353 (NCS), § 1.)

Unless otherwise specifically provided, all annual license taxes measured by gross receipts shall be due and payable in advance no later than the first day of February of each year; provided, that license taxes covering new operations commenced after the first day of January may be prorated for the balance of the license period.

All other annual license taxes shall be due and payable in advance no later than the first day of August of each year; provided, that license taxes covering new operations commenced after the first day of July may be prorated for the balance of the license period.

Annual licensees, at their option, may pay the annual tax in two equal installments, one-half on renewal date and the balance on the first day of July or January following the prescribed renewal date.

Except as otherwise herein provided, license taxes, other than annual, shall be due and payable in advance as follows:

(a) Quarterly license taxes on the first day of January, April, July and October of each year;

(b) Daily license taxes in advance each day.

(Ord. No. 1353 (NCS), § 1; Ord. No. 2431 (NCS), § 3.)

For failure to pay a license tax when due, the collector shall add a penalty of ten percent of such license tax on the last day of each month for each month after the due date thereof; provided, that the amount of such penalty to be added shall in no event exceed fifty percent of the amount of the license tax due, and, provided further, that for good cause shown, the city manager may authorize the collector to waive all or any part of such penalty.

No license or sticker, tag, plate or symbol shall be issued, nor shall one which has been suspended or revoked be reinstated or reissued, to any person who, at the time of applying therefor, is indebted to the city for any delinquent license taxes, unless such person, or his heirs, with the consent of the collector, enter into a written agreement with the city, through the collector, to pay such delinquent taxes plus penalties accrued, plus five percent simple annual interest upon the unpaid balance, in monthly installments, or oftener, extending over a period of not to exceed one year.

In any agreement so entered into, such person shall acknowledge the obligation owed to the city and agree that, in the event of failure to make timely payment of any installment, the whole amount unpaid shall become immediately due and payable and his current license shall be revocable by the collector upon thirty days notice. In the event legal action is brought by the city to enforce collection of any amount included in the agreement, such person shall pay all costs of suit incurred by the city or its assignee, including a reasonable attorney's fee. The execution of such an agreement shall not prevent the prior accrual of penalties on unpaid balances at the rate provided hereinabove, but no penalties shall accrue on account of taxes included in the agreement, after the execution of the agreement and the payment of the first installment and during such time as such person shall not be in breach of the agreement.

(Ord. No. 1353 (NCS), § 1.)

No refund of an overpayment of taxes imposed by this chapter shall be allowed in whole or in part unless a claim for refund is filed with the collector no later than one year from the last day of the calendar month following the period for which the overpayment was made, and all such claims for refund of the amount must be filed with the collector on forms furnished by him and in the manner prescribed by him. Upon the filing of such a claim and when he determines that an overpayment has been made, the collector may refund the amount overpaid.

A refund may be made by the collector to any person going out of business and relinquishing an annual business license prior to the end of the period for which a license tax has been paid and a license issued. Such refund shall only be made upon submission by licensee of a written statement indicating relinquishing of the license and accompanied by all copies of the license and facsimiles thereof. The refund which may be made shall be prorated as follows:

(a) If relinquishment is made during the first quarter of the annual period, seventy-five percent of the annual fee may be refunded;

(b) If relinquishment is made during the second quarter, fifty percent;

(c) If relinquishment is made during the third quarter, twenty-five percent;

(d) No refund for relinquishment during the fourth quarter.

(Ord. No. 1353 (NCS), § 1; Ord. No. 2226 (NCS), § 3.)