Santa Ana Municipal Code § 21-11 Concessions; separate license required

The purpose of this Chapter is to provide a revenue for the general operation of the city by the levy of a license tax on all business transactions or activities carried on or occurring within the city and is not intended for regulation.

(Ord. No. NS-1922, § 1, 7-20-87)

There are 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, whether as principal or agent, clerk or employee, either for himself or for any other person, or for body corporate, or as an officer of any corporation to transact and carry on any business, trade, profession, calling or occupation in the city without first having procured a license from the city to do so or without complying with all applicable provisions of this Code.

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 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 but shall not be subject to any penal provisions of this Code for such nonpayment. Said tax shall be collected in a civil action.

(Ord. No. NS-1922, § 1, 7-20-87)

The engaging in, transacting and carrying on of any business without first having procured a license from the city to do so, or without complying with any and all provisions of this Chapter, constitutes a distinct and separate violation of this Chapter for each and every day that such business is so carried on.

(Ord. No. NS-1922, § 1, 7-20-87)

A separate business license fee must be paid and a separate business license obtained for each branch establishment or separate property 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 and in the manner designated in such license. Provided, however, that warehouse or distribution facilities located upon the same premises or upon contiguous premises and used in connection with or incidental to a business licensed thereat under the provisions of this Chapter shall not be deemed to be separate types of business or separate branch establishments. Further provided that no separate business transactions or administrative or management related activities shall be carried on in such incidental or supplemental warehouses or distribution facilities.

(Ord. No. NS-1922, § 1, 7-20-87; Ord. No. NS-2000, § 2, 3-6-89)

(a) Whenever any person is engaged in two (2) or more correlated businesses, or is carrying on two (2) or more allied activities at the same location and under the same ownership and management and the said businesses are on a gross receipts basis, then in that event the gross receipts shall be reported together, and the appropriate applicable rate or rates prescribed will be used for the compilation of the combined annual license fee, to which amount the basic tax rate amount and business license processing charge shall be applied once only, and for which amount a single combined license shall be issued.

Provided, however, that nothing contained in this section shall be construed to relieve the payment of two (2) or more business license taxes, when required, where two (2) or more separate businesses are conducted in the same location by the same owner and management and such businesses are not construed by the collector to be correlated or allied with each other. An appropriate business license tax as set forth in this Chapter shall be paid for each business.

(b) Whenever any person is engaged in any activity pursuant to a state contractor's license and at the same time is engaged in one (1) or more other correlated businesses, or is carrying on one (1) or more allied activities at the same location and under the same ownership and management, which business or businesses are on a gross receipts basis, then in that event such person may elect to report all the gross receipts together, including all the gross receipts attributable to any services rendered as a state-licensed contractor, which shall be at the rate of a service business, and the applicable rate or rates prescribed will be used for the compilation of the combined annual license fee, to which amount the basic tax rate amount and business license processing charge shall be applied once only, and for which amount a single combined license shall be issued.

Provided, however, that nothing contained in this section shall be construed to relieve the payment of two (2) or more business license taxes, when required, where two (2) or more separate businesses are conducted in the same location by the same owner and management and such businesses are not construed by the collector to be correlated or allied with each other. An appropriate business license tax as set forth in this Chapter shall be paid for each business.

(c) Whenever any person is engaged in transacting and carrying on any business at any fixed place of business within the city, and for whom flat rates or variable flat rates are made the basis for fixing the amount of such license, and who at the same time, and at that same location, and under the same ownership and management, is engaged in the commercial rental of any portion of said premises as owner-lessor or leaseholder-lessor, then in that event such person may elect to report all the gross receipts attributable to the rental of commercial real estate thereat, which gross receipts shall be subject to a separate license fee at the rate established for the rental of commercial real estate, but to which amount the basic tax rate amount and business license processing charge shall be excluded.

(Ord. No. NS-1922, § 1, 7-20-87; Ord. No. NS-2064, § 2, 6-18-90)

Whenever any person is engaged in a combined business conducted at the same location and by the same owner and management carrying on manufacturing and selling at wholesale and also at retail, or selling at wholesale and also at retail but not manufacturing, and where such combined business is not otherwise specifically licensed on the flat rate basis, then in that event a single combined statement separately showing the amount of manufacturing and wholesale and retail business engaged in respectively shall be filed and the combined tax shall be separately calculated according to the respective rates appropriate for each category of business activity, to which amount the minimum tax fee and business license processing charge shall be applied once only, and for which amount a single combined license shall be issued.

In the event that such a combined statement is not filed, or in the event sufficient records have not been kept which will enable the manufacturing and wholesale portion and the retail portion of such business to be ascertained, then in that event all business done by any such person, whether manufacturing and wholesale or whether retail, shall for the purposes of this section be considered as retail business and the rate prescribed for retail business shall be applied to calculate the amount of business tax due, to which amount the minimum tax fee and business license processing charge shall be applied once only, and for which amount a single combined license shall be issued.

Provided, however, that nothing contained in this section shall be construed to relieve the payment of two (2) or more business license taxes, when required, where two (2) or more separate business activities are conducted in the same location by the same owner under the same management and such business activities are not construed by the collector to constitute a combined business. An appropriate business license tax as set forth in this Chapter shall be paid for each business.

(Ord. No. NS-1922, § 1, 7-20-87)

Nothing contained in this Chapter shall be construed to relieve the obligation to obtain a separate license and to pay the appropriate license tax required for each business owned or conducted by a separate owner within an individual establishment or location whether under the same management or not.

(Ord. No. NS-1922, § 1, 7-20-87)

Any person who operates any business, whether upon a cost, rental or commission basis as a concession or upon rented floor space in or upon the premises of any person licensed under the provisions of this Chapter, shall be required to obtain a separate and independent license pursuant to this Chapter except as may be otherwise specified hereinafter.

(Ord. No. NS-1922, § 1, 7-20-87)

Any person who shall associate with any local business or governmental agency, whether or not on a temporary basis, shall not be relieved from the provisions of this Chapter and shall be required to pay the appropriate business license tax as specified in this Chapter. Nothing in this Chapter shall be deemed or construed to relieve any such person from the provisions of this Chapter by virtue of any exemption provided to any local business pursuant to this Chapter or any exemption or exclusion applicable to any agency, instrumentality, or political subdivision of the state or of the United States, or any exemption or exclusion otherwise arising out of the constitution or applicable statutes of the United States or the state.

(a) Definitions. As used in this section, the following phrases shall have the meaning hereinafter set forth:

(1) The phrase "local business" as used in this section shall be defined as including all persons transacting and carrying on business from any fixed place of business within the city other than as an employee. In addition, the phrase "local business" shall include all leaseholder-lessors and owner-lessors of commercial or residential real estate within the city.

(2) The phrase "governmental agency" as used in this section shall be defined as including every agency, instrumentality, or political subdivision of the state or of the United States.

(3) The phrase "associate with" as used in this section shall be defined to mean the transacting and carrying on, by any other person, of business on the premises owned, controlled, or managed by said local business or governmental agency, whether as a tenant of, in connection with, or as an affiliate of, or as an adjunct to, or in the name of said local business or governmental agency, or whether as a building management agent, or property management agent, or independent general operating agent or manager for said local business or governmental agency, or whether as an outside business or an independent contractor performing services for said local business or governmental agency.

(b) Application. In the case of a local business which is a partnership or joint venture, the phrase "associate with" shall not include the business transacted and carried on by a general partner in connection with the general partnership or by a joint venturer in connection with the joint venture. In the case of a local business which is a corporation, the phrase "associate with" shall include any business transacted and carried on by a subordinate or subsidiary corporation or holding company, pass-through entity or trust. For all local businesses, the phrase "associate with" shall include the maintaining on the premises of the local business of any principle executive or other business office as required in connection with the registration of any business entity address with the California Secretary of State for any actively registered corporation, limited liability company, limited partnership, or limited liability partnership under the California Corporations Code as the same now exists or as may be hereafter amended from time-to-time.

In the case of a local business which is a leaseholder-lessor or owner-lessor of commercial or residential real estate within the city, the phrase "associate with" shall include any business transacted and carried on by an independent resident property manager, independent building manager, independent property agent or independent building agent, whether or not such independent manager or agent is also a tenant of said property. Such independent manager or agent shall be required to obtain a separate business license. In the case of a local business which is a tenant of a commercial premises and a party to a lease-back agreement or other similar agreement involving said commercial real estate in which the ownership identities of both parties to the agreement are identical, but the legal entities are distinct, the phrase "associate with" shall include any such business transacted by the owner-lessor or leaseholder-lessor of said commercial real estate. Such owner-lessor or leaseholder-lessor shall be required to obtain a separate business license and shall be subject to all the requirements of this Chapter.

(c) Disclosure.

(1) Every local business, and any person acting as their agent, shall upon request by the collector, provide the names and addresses of all persons who lease, rent or maintain space, mailboxes, coin-operated machines or devices, or in any other manner transact and carry-on business, or occupy or maintain a business presence on the premises owned, controlled, or managed by said local business. In addition, every local business, and any person acting as their agent, shall upon request by the collector, provide the names and addresses of all persons, whether or not located within the city, who are contracted to perform, or who regularly do perform services on the premises owned, controlled, or managed by said local business.

(2) Every person engaged in the rental of residential real estate within the city, every condominium or homeowner association within the city, and all property management services acting as their agents, shall upon request by the collector, provide the names and addresses of all persons who have been granted permission to engage in business activity on the premises owned, controlled, or managed by them. In addition thereto, all condominium or homeowner associations within the city and all property management services acting as their agents, shall upon request by the collector, provide the names, property addresses, and mailing addresses of all owners engaged in the rental of any residential real estate, under their control or management.

(3) Every person engaged in the rental of commercial real estate within the city, and all property management services acting as their agents, shall, at the time the license required by this Chapter is applied for and thereafter annually at the time of the renewal of their license for the rental of commercial real estate, or at such other time as the collector in his or discretion may set, provide to the collector a list of (i) the names and addresses of all tenants (including subtenants) occupying the commercial real estate property licensed; and (ii) the names and addresses of all persons, whether or not located within the city, who are contracted to perform, or who regularly do perform services on the licensed premises owned, controlled, or managed by said commercial real estate rental licensee or commercial real estate management agent.

(d) Disclosure requirements—Authority to vary. To effectively implement the intent of the disclosure provisions of this section, the collector may vary the strict requirements of subsection (c) above to accommodate the regular record keeping and business practices of persons subject to the disclosure requirement and also to facilitate ease of administration by the collector.

(e) Confidentiality. All information received by the collector pursuant to this section shall remain confidential and shall be used solely for the purposes of administering the city's business license tax and shall not be maintained by the city as part of the public record.

(Ord. No. NS-1922, § 1, 7-20-87; Ord. No. NS-2841, § 5, 2-4-13)

In the event that any business conducted, managed or carried on in the city is organized as a partnership or joint venture, the scheduled license fee need be paid only by the partnership or joint venture and not by any such individual partner or joint venturer.

(Ord. No. NS-1922, § 1, 7-20-87)

In the event that any business conducted, managed or carried on in the city is organized as a general law corporation, pursuant to the California General Corporation Law, the scheduled license fee need be paid only by the corporation and not by any such individual shareholder thereof.

(Ord. No. NS-1922, § 1, 7-20-87)

In the event that any business conducted, managed or carried on in the city is organized as a professional corporation, the scheduled license fee need be paid only by the corporation and not by any such individual shareholder thereof

(Ord. No. NS-1922, § 1, 7-20-87)

(a) When any person shall by use of signs, circulars, cards, business letterhead, telephone books, newspapers, billboards, trade publications, electronic telephone or business directories, internet advertisement, or websites, advertise, holdout, or represent that such person is in business in the city; or when any person has registered and published a fictitious name statement registered to an address in the city, or holds or has been issued an active state board of equalization permit, or holds any other active licenses, permits, certificates or registrations issued by a governmental agency (including but not limited to: federal or state employer identification numbers, or registration with the California Secretary of State as a corporation, limited partnership, limited liability partnership, or limited liability company) indicating that such person is in business within the city, or maintains a post office box under a business name registered to any address within the city, or when any person files federal income tax or state franchise tax statements reporting business income within the city or claiming business office deductions or business expense deductions for a commercially located or home-based business in the city, or gives other evidence of transacting and carrying on business as may be defined elsewhere under the terms of this Chapter and such person fails to deny in a sworn statement given to the collector that such person is "engaged in business" within the city, or fails to assert and document that such person is "exempted" or otherwise "excluded" from the requirement to pay a business license tax, after being requested to do so by the collector, then these facts shall be considered prima facie evidence that such person is conducting a business in the city.

(b) When any municipal utility records indicate that the occupant of any commercial real estate within the city is a person other than the person indicated by county assessor or county recorder records to be the owner of such property, or when any utility records indicate that the occupant of any residential real estate within the city is a person other than the person indicated by county assessor or county recorder records to be the owner of such property, or when the county assessor or county recorder records indicate that any person owning residential real estate within the city does not claim a homeowner's exemption for said property and receives their property tax notification for said property at another residence location, and such person fails to deny in a sworn statement given to the collector that such person is engaged in the "rental of residential real estate" within the city, or fails to assert and document that such person is "exempted" or otherwise "excluded" from the requirement to pay a business license tax, after being requested to do so by the collector, then these facts shall be considered prima facie evidence that such person is conducting a business in the city.

(Ord. No. NS-1922, § 1, 7-20-87; Ord. No. NS-2841, § 5, 2-4-13)

Persons required to pay a license tax for transacting or carrying on any business under this Chapter shall not be relieved from the payment of any tax for the privilege of doing such business required under any other provisions of this Code and shall remain subject to all regulatory provisions.

(Ord. No. NS-1922, § 1, 7-20-87)

The business license issued pursuant to the provisions of this Chapter constitutes a receipt for the license fee paid and shall have no other legal effect. A business license is a requirement, not a permit, to transact and carry on any business activity within the city. The business license tax receipt is evidence only of the fact that such tax has been paid. Neither the payment of the tax nor the possession of the business tax receipt authorizes, permits or allows the doing of any act which the person paying or holding the same would not otherwise be entitled to do; and any permit, license, variance or other instrument of approval or evidence that any conditions exist as required by any other Section of this Code or by any statute or code provisions of the state must first be obtained or complied with before the doing of any act or thing for which it is required.

(Ord. No. NS-1922, § 1, 7-20-87)

If any article, Section, subsection, sentence, clause, or phrase of this Chapter is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not effect the validity of the remaining portions of the chapter. The city council hereby declares that it would have passed this Chapter and each article, Section, subsection, sentence, clause and phrase hereof, irrespective of the fact that any one or more of the articles, Sections, subsections, sentences, clauses or phrases hereof be declared invalid or unconstitutional.

(Ord. No. NS-1922, § 1, 7-20-87)

If any license tax imposed by this Chapter is for any reason held to be discriminatory or invalid in amount, by the decision of any court of competent jurisdiction, such decision shall not affect the validity of a lesser amount imposed by the collector. The city council hereby declares that it would have imposed a license tax of some amount on the business, occupation, calling, trade, vocation or other enterprise in question, irrespective of the fact that any one or more of the license taxes imposed herein may be declared discriminatory or invalid in amount.

(Ord. No. NS-1922, § 1, 7-20-87)

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

(Ord. No. NS-1922, § 1, 7-20-87)

Where a license for revenue purposes has been issued to any business by the city and the tax paid therefor under the provisions of any business license tax ordinance heretofore enacted and the term of such license has not expired, then the license tax prescribed for such business by this Chapter shall not be payable until the expiration of the term of such unexpired license.

(Ord. No. NS-1922, § 1, 7-20-87)

No business license for any succeeding, current or unexpired tax period shall knowingly be issued to any person, who at the time of application, is indebted to the city for any unpaid tax. The total indebtedness shall include the total tax due plus penalties for failure to pay the tax when due.

(Ord. No. NS-1922, § 1, 7-20-87)

The amount of any business 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, penalties, and administrative costs incurred in connection therewith, including attorneys fees.

(Ord. No. NS-1922, § 1, 7-20-87)

(a) Any person who shall commence, engage, transact and carry on any trade, calling, profession, occupation or business within the city without first having procured the required business license from the city to do so, shall be assessed a penalty of fifty (50) per cent of the amount of the license tax owing, which amount shall be separately calculated for each successive license period beginning with the calendar month in which the commencement of business activity within the city began, and ending with the expiration of the current annual licensing period. Provided, however, that the start of such period shall not exceed three (3) years prior to the date of notification of violation. Such penalty to be collected, and the amount thereof to be enforced, in the same manner as all other business license taxes are collected and the payment thereof enforced.

(b) Where any person is in arrears for business license taxes under subsection (a) above, owed for the rental of residential or commercial real estate within the city, or owed for a business which is conducted solely from a home residence within the city, the penalties imposed under subsection (a) shall be abated in accordance with subsection (f) below if the tax is paid by the last day of the calendar month following the month in which such person was given notice of the requirement to obtain a city business license; otherwise penalties shall accrue as in the case of any other business.

(c) Where any person occupying a commercial premises as a tenant or subtenant is in arrears for business license taxes under subsection (a) above, and has been reported to the collector pursuant to Section 21-12, the penalties imposed under subsection (a) shall be abated in accordance with subsection (f) below if the tax is paid by the last day of the calendar month following the month in which such person was given notice of the requirement to obtain a city business license; otherwise penalties shall accrue as in the case of any other business.

(d) Where any person, whether or not located within the city, is contracted to perform, or regularly does perform services on the premises owned, controlled, or managed by a local business as defined in Section 21-12 and is in arrears for business license taxes under subsection (a) above, and has been reported to the collector pursuant to Section 21-12, the penalties imposed under subsection (a) shall be abated in accordance with subsection (f) below if the tax is paid by the last day of the calendar month following the month in which such person was given notice of the requirement to obtain a city business license; otherwise penalties shall accrue as in the case of any other business.

(e) Where any person is otherwise in arrears for business license taxes under subsection (a) above, the penalties imposed under subsection (a) shall be abated in accordance with subsection (f) below if such person voluntarily applies for the required business license and pays the business license tax owing in arrears; otherwise penalties shall accrue as in the case of any other business.

(f) In all cases where the provisions of this section provide for the abatement of penalties imposed under subsection (a), the amount owing in arrears and the amount of the accrued penalties shall be abated until the combined amount of tax and penalty due is equalized to an amount equivalent to the amount of current and prior years' taxes owing as computed or determined based upon the business license tax rates in effect for the most current tax year.

(g) In determining the amount of penalty due for any person for whom an initial license period gross receipts in lieu deposit is required in accordance with Sections 21-117, 21-118 or 21-118.1 the collector shall compute and apply the penalty due at the time that such person's initial period gross receipts report is filed and computed in accordance with Section 21-117(c).

(h) However, no abatement of penalties or interest shall be permitted under this section in any case where such person concurrently holds or has previously held a city business license or previously been given notice of said requirement with regard to any business activity engaged in or conducted within the city.

(i) When any person is determined to be liable for delinquent business license taxes and such person fails to properly procure the correct business license after being given notice to do so, the collector shall determine the amount of delinquent business license taxes owed in accordance with Section 21-41. Penalties thereon shall be accrued as applicable in accordance with this section. In determining the amount of tax due for any business for whom the gross receipts of such business is made the basis for fixing the amount of such business license the collector may base such determination upon an average of the reported gross receipts of like businesses, similarly classified.

(j) Any person required to obtain a city business license under the terms of this Chapter having been given notice of the requirement to obtain a city business license under the terms of this section, whether by personal service, or by a notice conspicuously posted upon the premises of such person's business, or by notice given through the United States mail, who has not paid said business license tax or otherwise obtained a valid business license, or applied for exemption therefrom and who has not applied for, or who is not undergoing the process of a hearing or appeal pursuant to Section 21-41 or Chapter 3 of this Code shall be deemed guilty of a misdemeanor violation. For the misdemeanor violation provision of this section to apply, notice, when given by United States mail shall be mailed to the responsible person by certified mail, postage prepaid with a requested return receipt. Simultaneously, the notice may be sent by first class mail. If the notice is sent by certified mail and the return receipt is returned unsigned or refused, then service of notice shall be deemed effective pursuant to first class mail, provided the notice sent by first class mail is not returned.

(Ord. No. NS-1922, § 1, 7-20-87; Ord. No. NS-2841, § 5, 2-4-13)

(a) Any person violating any of the provisions of this Chapter shall be deemed guilty of a criminal infraction except where said violation is specifically deemed a misdemeanor.

(b) Every violation of the provisions of this Chapter determined to be a criminal infraction shall upon conviction thereof be punishable by (1) a fine of one hundred dollars ($100.00) for a first violation; (2) a fine of two hundred dollars ($200.00) for a second violation of the same provision within one year; (3) a fine of two hundred fifty dollars ($250.00) for each additional violation of the same provision within one year. Each day any such violation of any said provision of this Chapter shall continue shall constitute a separate offense.

(c) Every violation of the provisions of this Chapter deemed to be a misdemeanor, upon conviction thereof shall be punishable as provided for in Section 1-8 of this Code. Each day any violation of any said provision of this Chapter shall continue shall constitute a separate offense.

(Ord. No. NS-1922, § 1, 7-20-87)

Any person knowingly or intentionally misrepresenting to any officer or employee of the city any material fact in applying for or paying for the business license herein provided for shall be deemed guilty of a misdemeanor violation of this Chapter.

(Ord. No. NS-1922, § 1, 7-20-87)

The conviction and fine or imprisonment of any person for engaging in any business without first obtaining a license to conduct such business shall not relieve such person from paying the business tax to conduct such business, nor shall the payment of any business tax prevent a civil action or criminal prosecution for the violation of any of the provisions of this Chapter. All remedies prescribed hereunder 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 hereof.

(Ord. No. NS-1922, § 1, 7-20-87)

The collector shall cancel a valid unexpired license issued or granted to the licensee pursuant to this Chapter at the request of the licensee provided:

(a) The licensee so endorses, signs and surrenders the business license receipt along with any applicable decal, metalcal, sticker or tag, and

(b) All business activity pursuant to licensee's license has ceased.

Liability for any further business taxes shall cease only if the licensee's account is vacated pursuant to this section.

(Ord. No. NS-1922, § 1, 7-20-87)

Any person who contracts, sells or delivers any goods, wares or merchandise in the city for which sales or use tax is payable and who is required to report and pay such sales and use tax to the state shall obtain an appropriate California State Board of Equalization permit and furnish the collector with his sales tax number and shall report separately in his return to the state the amount of receipts from sales in the city and/or the receipts from sales for use in the city and shall pay the required sales or use tax on such receipts. Any such person who fails to do so shall be deemed guilty of a misdemeanor violation of this Chapter.

(Ord. No. NS-1922, § 1, 7-20-87)