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HomeMy WebLinkAboutOrdinance #1247 ORDINANCE NO. 1247 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF HUNTINGTON BEACH ADDING ARTICLE 174 AND SECTIONS THEREOF RELATING TO CIGARETTE TAX ON THE SALE OF CIGARETTES, TO THE HUNTINGTON BEACH ORDINANCE CODE. The City Council of the City of Huntington Beach does ordain as follows : Section 1. That Article 174 entitled, "Cigarette Tax" is hereby added to the Huntington Beach Ordinance Code to read in words and figures as follows : ARTICLE 174 CIGARETTE TAX Section 2. That the following sections are hereby added to Article 174 of the Huntington Beach 'Ordinance Code to read in words and figures as follows : S. 1741. Definitions . S . 1741 . 1 Cigarette means any roll for smoking, made wholly or in part of tobacco, irrespective of size or shape and. irrespective of whether the tobacco is flavored, adulterated or mixed with any other ingredient, where such roll has a wrapper or cover made of paper or any other material, except where such wrapper is wholly or in the greater part made of tobacco and such roll weighs over three pounds per thousand. S . 1741. 2 Use or Consumption includes the exercise of any right or power over cigarettes incident to the ownership thereof other than the sale of the cigar- ettes or the keeping or retention thereof for the purpose of sale . S . 1741. 3 Retailer shall mean any domestic or foreign corporation, association, syndicate, joint venture, joint stock company, partnership of any kind, club, Massachusetts business or common law trust, gociety 1 . r Ord. No. 1247 or individual who sells cigarettes for any purpose other than resale . Where cigarettes are offered for sale through the means of a vending machine, the person holding title to the cigarettes in the machine shall be deemed the retailer. S. 1742 . Tax Imposed. An excise tax is hereby imposed upon the use or consumption in the City of Huntington Beach of cigarettes purchased from a retailer for use or consumption within the City of Huntington Beach at the rate of one and one half mill ($0.0015) per cigarette. S . 1742 . 1 Tax Paid To Retailer. The tax constitutes a debt owed by the purchaser to the City which is extinguished only by payment of the tax to the Director of Finance or to the retailer. When a purchase from a re- tailer is made within the City, the tax shall be paid to the retailer at the time the purchase price is paid. The tax collected. or required to be collected. by the retailer con- stitutes a debt owed by the retailer to the City. Should any remittance of tax be made by a retailer prior to sale of cigarettes to a consumer, such remittance shall be considered as an advance payment to be reimbursed, by adding the amount of the tax to the price of the cigarettes at the time of sale to the user or consumer. S . 1742 . 2 Retailer Remits Quarterly. Each retailer selling cigarettes within the City of Hunt- ington Beach shall collect. the tax imposed under Section 1742 of this Article, and on or before the last day of the month following the close of a calendar quarter remit the total amount so collected to the Director of Finance to- gether with a statement on a form provided. by the Director of Finance showing the number of cigarettes sold to purchas- ers, the amount of tax collected., and. such other information as the Director of Finance shall require . Where the Direc- tor of Finance determines that efficiency in the administra- tion of the tax would be promoted., he may establish report- ing periods greater than quarterly, but not to exceed one year. The Director of Finance may establish. shorter report- ing periods for any retailer if he deems it necessary in order to insure collection of the tax. Statements and pay- ments are due immediately upon cessation of the business of selling cigarettes for any reason. All taxes collected by retailers pursuant to this Article shall be held in trust for the account of the City until payment thereof is made to the Director of Finance . S . 1742 . 3 Registration. S . 1742 .3 . 1 Within 30 days after the operative date of this Article, or within 30 days after com- mencing business, whichever is later, each retailer shall 2 Ord. No1247 register with the Director of Finance and obtain from him a "Cigarette Tax Registration Certificate" to be at all times posted in a conspicuous place on the premises; provided, however, each retailer who does not operate from a fixed place of business shall keep the registration certificate upon his person at all times while engaging in the business of being a retailer. No person shall engage in the business of being a retailer without obtaining a registration certif- icate therefor. Said certificate shall, among other things, state the following: a) The name of the operator; b) The address of the retailer' s place of business; c) The date upon which the certificate was issued.; d) "This Cigarette Tax Registration Certificate sig- nifies that the person named. on the face hereof has ful- filled the requirements of the Cigarette Tax Ordinance by registering with the Director of Finance for the purpose of collecting the Cigarette Tax from purchasers of cigarettes and remitting said tax to the Director of Finance . This certificate does not authorize any person to conduct any lawful business in an unlawful manner, nor to operate a cig- arette retailing business without complying with all state and. local applicable laws, including but not limited to those requiring a permit from any board, commission, department or office of this City. This certificate does not consti- tute a permit . " S. 1742 . 3 . 2 A retailer having more than one place of business within the City at which cigar- ettes are sold shall be required to obtain a separate regis- tration for each such place of business . S . 1743 . Penalties and Interest . S . 1743 . 1 Original Delinquency Period. Any retailer who fails to remit any tax imposed. by this Article within the time required. shall pay a penalty of ten per cent (10%) of the amount of the tax in addition to the amount of the tax. S . 1743 .2 Continued Delinquency. Any retailer who fails to remit any delinquent remittance within one month following the date on which the remittance first became delinquent shall pay a second delinquency pen- alty of ten per cent (10%) of the amount of the tax in add- ition to amount of the tax and the ten per cent (10%) pen- alty first imposed. 3 Ord.. No . 1247 S . 1743 .3 Fraud. If the Director of Finance deter- mines that the nonpayment of any remittance due under this Article is due to fraud, a payment of twenty- five per cent (25%) of the amount of the tax shall be added thereto in addition to the penalties stated in Section 1743 . 1 and. Section 1743 .2 of this section. S . 1743 .4 Interest . In addition to the penalties im- posed, any retailer who fails to remit any tax imposed by this Article shall pay interest at the rate of one-half of one per cent ( . 5%) per month or fraction thereof on the amount of the tax, exclusive of penalties, from the date on which the remittance first became delin- quent until paid . S . 1743 . 5 Penalties Merged With Tax. Every penalty imposed and such interest as accrues und.er the provisions of this section shall become a part of the tax herein required. to be paid. S. 1743 . 6 Penalties During Pendency of Hearing or Appeal. No penalty provid.ed. under the terms of this Article shall be imposed during the pendency of any hearing which is provided for in Section 1745 of this Article nor during the pend.ency of any appeal to the City Council which is provided for in Section 1745 of this Article . S . 1744. Failures to Report and Collect Tax: Deter- mination By Director Of Finance . If any re- tailer shall fail or refuse, within the time provided for in this Article, to make any report and remittance of said tax or any portion thereof required. by this Article, the Director of Finance shall proceed to obtain facts and information on which to base his estimate of the tax due . As soon as the Director of Finance shall procure such facts and information as he is able to obtain upon which to base the assessment of any tax imposed by this Article and payable by any retailer who has failed or refused. to make such report and remitt- ance, he shall proceed, to determine and. assess against such retailer the tax interest and penalties provided for by this Article . . In case such determination is made, the Director of Finance shall give a notice of the amount so assessed by serving it personally or by depositing it in the United States mail, postage prepaid, addressed to the distributor so assessed at his last known place of add.ress . Such re- tailer may within ten (10) days after the serving or mailing of such notice make application in writing to the Director of Finance for a hearing on such amount assessed. If appli- cation by the retailer for a hearing is not made within the time prescribed, the tax, interest and penalties, if any, determined by the Director of Finance shall become final and conclusive and. immediately due and. payable . If such appli- cation is made, the Director of Finance shall give not less 4 Ord. No . 1247 than five (5) days written notice in the manner prescribed. herein to the retailer to show cause at a time and place fixed in said. notice why said amount specified therein should. not be fixed. for such tax, interest and penalties . At such hearing, the retailer may appear and. offer evidence why such specified tax, interest and. penalties should not be so fixed. After such hearing, the Director of Finance shall determine the proper tax to be remitted and shall thereafter give written notice to the retailer in the manner prescribed here- in of such determination and the amount of such tax, inter- est and penalties . The amount determined to be due shall be payable after fifteen (15) days unless an appeal is taken as provided in Section 1745 . S. 1745 . Appeal. Any retailer aggrieved by an decis- ion by the Director of Finance with respect to the amount of such tax, interest and penalties, if any, may appeal to the Council by filing a notice of appeal with the City Clerk within fifteen (15) days of the serving or mailing of the determination of tax due . The Council shall fix a time and. place for hearing such appeal and the City Clerk shall give notice in writing to such retailer at his last known place of address . The findings of the Council shall be final and. conclusive and shall be served upon the appellant in the manner prescribed. above in the service of notice of hearing. Any amount found. to be due shall be immediately due and. payable upon the service of notice . S . 1746 . Refund.. S . 1746 . 1 Whenever the amount of any tax, interest or penalty has been over paid or paid. more than once or has been erroneously or illegally collected. or re- ceived by the City under this Article, it may be refunded as provided in Section 1746 . 2 of this section provided. a claim in writing therefor, stating under penalty of perjury the specific ground. upon which the claim is founded, is filed with the Director of Finance within three years of the date of payment . The claim shall be on forms furnished by the Director of Finance . S . 1746 . 2 A retailer may claim a refund or take as credit against taxes due but never remitted the amount overpaid, paid more than once or erroneously or illegally collected. or received. when it is established. in a manner prescribed by the Director of Finance that the amount claimed has been overpaid or paid more than once or has been erroneously or illegally collected. or received by the City. S . 1746 .3 No refund shall be paid under the provisions of this section unless the claimant estab lishes by written records entitlement thereto . 5 Ord.. No.1247 S . 17117. Actions To Collect . Any tax required. to be paid by a retailer under the provisions of this Article shall be deemed a d.ebt owed. to the City. Any person owing taxes under the provisions of this Article shall be liable to an action brought in the name of The City of Huntington Beach for the recovery of such amount . S . 1747 . 1 Records . It shall be the duty of every re- tailer liable for the collection and payment to the City of any tax imposed. by this Article to keep and preserve, for a period of four years, all records as may be necessary to determine the amount of such tax as he may have been liable for the collection of and payment to the City, which records the Director of Finance shall have the right to inspect at all reasonable times . S . 1748. Violations Misdemeanor. Any person violating any provision of this Article shall be guilty of a misd.emeanor and shall be punishable by a fine of not more than Five Hundred Dollars ($500.00) or by imprisonment in the City jail for not more than six months or by both such fine and imprisonment . Any retailer who fails to furnish any required return to be made or who fails to furnish or refuses to furnish other data required by the Director of Finance, or who ren- ders a false or fraudulent return or claim, is guilty of a misdemeanor, and is punishable as aforesaid. Any person re- quired to make, rend.er, sign or verify any report or claim who makes a false or fraudulent report or claim with intent to defeat or evade the determination of any amount due required by this Article to be made is guilty of a misdemeanor and is punishable as aforesaid. S . 1749. Severability. If any section, subsection, subdivision, paragraph, sentence, clause or phrase of this Article or any part thereof is for any reason held to be unconstitutional such decisions shall not affect the validity of the remaining portions of this Article or any part thereof. The City Council hereby d.eclares that it would have passed each section, subsection, subdivision, paragraph, sentence, clause or phrase thereof, irrespective of the fact that any one or more sections, subsections, sub- divisions, paragraphs, sentences, clauses or phrases be de- clared. unconstitutional. Section 3 . The City Clerk shall certify to the passage and ad.option of this ordinance and. shall cause the same to be published. by one insertion in the Huntington Beach News, 6 Ord. No. 1247 a weekly newspaper, printed, published and circulated in the City of Huntington Beach, California, and thirty (30) days after the adoption thereof, the same shall take effect and be in force . PASSED AND ADOPTED by the City Council of the City of Huntington Beach, California, this W-h day of Sept. , 1966 . Mayor ATTEST: City , erk APPROVED AS 0 F RM: LE BUSH Ci y Attorney 7 Ord. No . 1247 STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss: CITY OF HUNTINGTON BEACH ) I , PAUL C . JONES, the duly elected, qualified, and acting City Clerk of the City of Huntington Beach and ex- officio Clerk of the City Council of the said City, do hereby certify that the whole number of members of the City Council of the City of Huntington Beach is seven; that the foregoing ordinance was read to said City Council at a regular meeting thereof held on the 15fh day of August 19 66 , and was again read to said City Council at a regular meeting thereof held on the 6tn day of September 19 66 , and was passed and adopted by the affirmative vote of more than a majority of all the members of said City Council . AYES : Councilmen: Coen, Bartlett , Gisler , Kaufman, Green, Stewart NOES : Councilmen: None ABSENT: Councilmen: Shipley I, PAUL C. JONES, CITY CLERK ��� of the City of Huntington Beach City Clerk an ex-officio Clerk and ex-officio CierF of the City of the City Council of the City Council, do hereby certify that of Huntington Beach, California this ordinance has been published in the HuntingL,,rr beach News on In a cordce wits. .he City Charter of -;Ly. i -------------------------------------------------------------------- City Clerk Deputy City Clerk