AN ORDINANCE OF THE CITY OF POMEROY, WASHINGTON, AMENDING CHAPTER 5.04 OF THE POMEROY MUNICIPAL CODE TO ADOPT THE STATE MODEL BUSINESS LICENSE LANGUAGE REQUIRED UNDER CHAPTER 35.90 RCW; CONTAINING A SEVERABILITY PROVISION; AND, SETTING AN EFFECTIVE DATE

 

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            WHEREAS, in 2017 the Washington State Legislature passed Engrossed House Bill 2005 requiring all cities with business licenses to administer their business licensing through the State’s Business Licensing System (“BLS”) and requiring cities to adopt model business license language with a minimum threshold and a definition of “engaging in business”, codified at chapter 35.90 of the Revised Code of Washington; and

WHEREAS, the City of Pomeroy (“City”) has adopted general business license regulations at Chapter 5.04 of the Pomeroy Municipal Code (“PMC”), but does not yet utilize the BLS licensing services; and

WHEREAS, the City Council desires to amend Chapter 5.04 PMC to adopt the model business license language for compliance with state law and other minor changes necessitated by such adoption; and

WHEREAS, City staff recommends adoption of this Ordinance and the Mayor and City Council have reviewed this Ordinance and determined that the provisions in this Ordinance are in the best interests of the public health, safety and welfare of the citizens of the City of Pomeroy;

 

NOW, THEREFORE,  THE CITY COUNCIL OF THE CITY OF POMEROY, WASHINGTON, DO ORDAIN AS FOLLOWS:

            Section 1.  Chapter 5.04 of the Pomeroy Municipal Code is hereby amended to read as follows:

 

Chapter 5.04
BUSINESS LICENSES

 

Sections:

5.04.010          Purpose.

5.04.020           Definitions.

5.04.030          Scope.

5.04.040          Business license—Required.

5.04.050          Separate general business license required.

5.04.060          License fees—Payment.

5.04.070          General business license—Application.

5.04.080          Duration of business license.

5.04.090          License renewal—Filing date.

5.04.100          Refund request.

5.04.110          Denial, suspension or revocation of licenses.

5.04.120          Display of license—Transferability.

5.04.130          Licenses subject to specific controls.

5.04.140          Exemptions.

5.04.150          Separate offenses.

5.04.160          Violation—Penalty.

5.04.170          Appeal from denial of business license.

 

5.04.010          Purpose.

 

The provisions of this chapter shall be an exercise of the power of the city to license for the purpose of revenue and regulation.

 

5.04.020          Definitions.

 

As used in this chapter, the following words or terms shall have the following meanings:

 

A.         “Business” means and includes a person or entity engaging in business as set forth below.

 

B.         “Business license” means the document indicating the licenses and registrations that have been issued to a business through the city clerk’s office or applicable licensing service.

 

D.         “City” means the City of Pomeroy, Washington.

 

E.         “Engaging in business” means commencing, conducting, or continuing in business, and also the exercise of corporate or franchise powers, as well as liquidating a business when the liquidators thereof hold themselves out to the public as conducting such business.

 

1.         This section sets forth examples of activities that constitute engaging in business in the city, and establishes safe harbors for certain of those activities so that a person who meets the criteria may engage in de minimus business activities in the city without having to pay a business license fee.  The activities listed in this section are illustrative only and are not intended to narrow the definition of “engaging in business” in 5.04.020(E).  If an activity is not listed, whether it constitutes engaging in business in the city shall be determined by considering all the facts and circumstances and applicable law.

 

2.         Without being all inclusive, any one of the following activities conducted within the city by a person, or its employee, agent, representative, independent contractor, broker or another acting on its behalf constitutes engaging in business and requires a person to register and obtain a business license as further set forth in this chapter.

 

(a)        Owning, renting, leasing, maintaining, or having the right to use, or using, tangible personal property, intangible personal property, or real property permanently or temporarily located in the city.

 

(b)        Owning, renting, leasing, using, or maintaining, an office, place of business, or other establishment in the city.

 

(c)        Soliciting sales.

 

(d)        Making repairs or providing maintenance or service to real or tangible personal property, including warranty work and property maintenance.

 

(e)        Providing technical assistance or service, including quality control, product inspections, warranty work, or similar services on or in connection with tangible personal property sold by the person or on its behalf.

 

(f)        Installing, constructing, or supervising installation or construction of, real or tangible personal property.

 

(g)        Soliciting, negotiating, or approving franchise, license, or other similar agreements.

 

(h)        Collecting current or delinquent accounts.

 

(i)         Picking up and transporting tangible personal property, solid waste, construction debris, or excavated materials.

 

(j)         Providing disinfecting and pest control services, employment and labor pool services, home nursing care, janitorial services, appraising, landscape architectural services, security system services, surveying, and real estate services including the listing of homes and managing real property.

 

(k)        Rendering professional services such as those provided by accountants, architects, attorneys, auctioneers, consultants, engineers, professional athletes, barbers, baseball clubs and other sports organizations, chemists, consultants, psychologists, court reporters, dentists, doctors, detectives, laboratory operators, teachers, veterinarians.

 

(l)         Meeting with customers or potential customers, even when no sales or orders are solicited at the meetings.

 

(m)      Training or recruiting agents, representatives, independent contractors, brokers or others, domiciled or operating on a job in the city, acting on its behalf, or for customers or potential customers.

 

(n)        Investigating, resolving, or otherwise assisting in resolving customer complaints.

 

(o)        In-store stocking or manipulating products or goods, sold to or owned by a customer, regardless of where sale and delivery of the goods took place.

 

(p)        Delivering goods in vehicles owned, rented, leased, used, or maintained by the person or another acting on its behalf.

 

3.         If a person, or its employee, agent, representative, independent contractor, broker or another acting on the person’s behalf, engages in no other activities in or with the city but the following, it need not register and obtain a business license:

 

(a)        Meeting with suppliers of goods and services as a customer.

 

(b)        Meeting government representatives in their official capacity, other than those performing contracting or purchasing functions.

 

(c)        Attending meetings, such as board meetings, retreats, seminars, and conferences, or other meetings wherein the person does not provide training in connection with tangible personal property sold by the person or on its behalf.  This provision does not apply to any board of director member or attendee engaging in business such as a member of a board of directors who attends a board meeting.

 

(d)        Renting tangible or intangible property as a customer when the property is not used in the city.

 

(e)        Attending, but not participating in a “trade show” or “multiple vendor events”.  Persons participating at a trade show shall review the city’s trade show or multiple vendor event ordinances.

 

(f)        Conducting advertising through the mail.

 

(g)        Soliciting sales by phone from a location outside the city.

 

4.         A seller located outside the City merely delivering goods into the city by means of common carrier is not required to register and obtain a business license, provided that it engages in no other business activities in the city.  Such activities do not include those in subsection (3).

 

The city expressly intends that engaging in business include any activity sufficient to establish nexus for purposes of applying the license fee under the law and the constitutions of the United States and the State of Washington.  Nexus is presumed to continue as long as the taxpayer benefits from the activity that constituted the original nexus generating contract or subsequent contracts.

 

 

F.         “Person” means any individual, company, partnership, receiver, assignee, trustee in bankruptcy, trust, estate, firm, joint venture, club, corporation, association, society or any individual or group of individuals acting as a unit, whether mutual, cooperative, fraternal, nonprofit or otherwise.

 

5.04.030          Scope.

 

All persons who engage in business within the city as set forth in this chapter are subject to the provisions of this chapter unless specifically exempted.

 

5.04.040          Business license—Required.

 

Unless exempted under sections 5.04.020 or 5.04.180, it is unlawful for any person to engage in business in the city without having first obtained and being the holder of a valid and subsisting “business license” and paying the fees prescribed in this chapter.

 

5.04.050          Separate general business license required.

 

Each physical branch, establishment, or location engaging in business must be licensed separately. Each business license authorizes the licensee to engage in business activity only at that location identified on the license. If more than one business activity is carried on in the same building, but in a different location within the building, a separate license must be obtained for each business location in the building. If more than one business owner engages in business at the same physical location each owner must obtain a separate business license for their own business.

 

5.04.060          License fees—Payment.

 

A.         Unless exempted by Section 5.04.140, there is levied to be collected, from any person engaging in business in the city, annual license fees in such amounts as are established from time to time by city council resolution for both the original application and renewal of any business license. 

 

B.         Each annual license fee is due at the time of initial application or renewal of a business license. The business license fee shall not be prorated for any part of the year.

 

C.         Any person whose annual license fee is established based upon gross income shall be required to report their gross income for the prior year to the city clerk upon application for a renewal license.  The renewal license fee for the then-current year shall be based upon the gross income report provided to the city clerk.

 

5.04.070          General business license—Application.

 

A.         Application for a business license is made by submitting a completed business license application with all appropriate addenda and fees due to the city clerk.

 

B.         The business license application must include:

1. The name of the applicant;

2. The applicant’s residence;

3. The address of the principal place of business of the applicant;

4. The nature and/or type of business to be conducted;

5. The number of current employees of the applicant’s business;

6. Other information as may be required by the city clerk.

 

5.04.080          Duration of business license.

 

All business licenses issued pursuant to the provision of this chapter shall expire on the thirty-first day of December of the year for which they were issued, unless sooner suspended or revoked in the manner provided in this chapter.

 

5.04.090          License renewal—Filing date.

 

Applications for renewal of a business license shall be made on or before the expiration date provided for in this chapter. All licenses issued subsequent to the original business license shall be deemed renewal licenses if there has been no discontinuance of the licensee’s business operation or activities at the licensed premises.  All license fees shall become delinquent if not paid in full on or before March 31 of each year, and from the date of delinquency shall bear interest at the rate of eight percent per annum.

 

 5.04.100         Refund request.

 

If, pursuant to the provisions of this chapter, the applicant’s request for a business license is denied, either upon original application or renewal, one hundred percent of the fee tendered may be refunded to the applicant no later than ninety days following such denial; provided, that no refund shall be made where, during the pendency of the original application, the applicant has engaged in the business activity for which the business license was intended, and in that case such amount shall be forfeited to the city.

 

5.04.110          Denial, suspension or revocation of licenses.

 

A.         The city clerk shall deny an application for a business license or refuse to license any business or activity upon a written finding that:

1. Such business or activity proposed for licensing is not in compliance with or is unlawful or prohibited by any applicable city, state, or federal law or regulation; or

2. Such business or activity proposed for licensing may be detrimental to public peace, health, or welfare.

 

B.         The city clerk shall revoke or suspend any business license at any time on the following grounds:

1. The license was procured by fraud or false representation of facts;

2. The applicant or licensee or any of its servants, agents or employees, while acting within the scope of their employment, has violated or failed to comply with any of the ordinances of the city; provided, that this section shall not apply to traffic violations or to violations of ordinances when said violations are corrected within a period of thirty days from the date of the violation or when said violations are deemed not significant by the city clerk;

3. The licensee or any of its servants, agents or employees has been convicted of either a felony or misdemeanor involving moral turpitude, or involving fraud or an attempt to defraud while acting within the scope of their employment; or

4. The business activity for which the license was issued is or has become unlawful or prohibited by any applicable city, state, or federal law or regulation, including zoning regulation.

 

C.         The city clerk, upon finding that one or more of the above cited conditions exists, shall suspend the business license for a period of thirty days in case of a first violation and revoke the business license in cases involving a second violation.

 

5.04.120          Display of license—Transferability.

 

A.         All business licenses issued pursuant to this chapter authorizing the licensee to engage in business at a specified location shall be posted in a conspicuous place at such location, and such license shall not be tampered with in any manner; provided however, that when the licensee has no established place of business and goes from place to place or from house to house, then such license must be carried on the person of such licensee while actually engaged in business.

 

B.         License—Unlawful Use.

1. It is unlawful for any person to use, or permit to be used, any license, except those issued by authority of the city clerk in conformity with the provisions of this chapter.

2. It is unlawful for any person to make, or manufacture, any licenses, except upon order of the city clerk.

 

C. Licenses—Not Transferable. No business license issued under provisions of this chapter shall be transferable or assignable, unless specifically provided otherwise.

 

D.         Any city business license issued by authority of the city clerk is and remains the property of the city and, if found in the possession of any person other than the licensee or its servants, agents or employees, such license shall be immediately confiscated by officials of the city.

 

5.04.130          Licenses subject to specific controls.

 

Business licenses issued under the provisions of this chapter and the activities conducted by the licensee holding the business license are subject to all ordinances and regulations enacted by the city. In the event of a conflict between any of the provisions of this chapter and another ordinance or regulation enacted by the city to control a specific business activity, the control established by the specific ordinance or regulation supersedes any conflicting portions of this chapter.

 

5.04.140          Exemptions.

 

A.         The business licensing requirements of this chapter do not apply to the following:

1. Any person, firm, company or corporation for mere delivery in the city of any property purchased or acquired in good faith for such person at his regular place of business outside the city where no intent by such person is shown to exist to evade the provisions of this chapter.

2. Any instrument of the United States, state of Washington, or political subdivision thereof with respect to the exercise of governmental functions.

3. Any farmer, gardener, or other person who shall sell, deliver or peddle any fruits, vegetables, berries, dairy products, fish, poultry, meats, or any farm produced or manufactured items by such person in this state as provided by RCW 36.71.090(1); provided, however, such farm produced or manufactured items are not prohibited by federal or state law.

4. Persons under the age of eighteen years.

5.  Any person or business whose annual value of products, gross proceeds of sales, or gross income of the business in the city is equal to or less than $2,000 and who does not maintain a place of business within the city.  This threshold does not apply to regulatory license requirements or activities that require a specialized permit.

 

B.         Businesses operated by nonprofit entities properly registered as such with the Washington Secretary of State must comply with the business licensing requirements provided in this chapter but are exempt from the business license fee established in this chapter.

 

5.04.150          Separate offenses.

 

Each day that any person, firm, corporation or association shall engage in any business or activity for which a license is required without having procured a valid existing license as provided for by this chapter may constitute a separate offense and be punished as such.

 

5.04.160          Violation—Penalty.

 

Any person, firm, corporation or association violating the terms of this chapter shall be guilty of a civil infraction and shall be punished by a fine not to exceed five hundred dollars.

 

5.04.170          Appeal from denial of business license.

 

A. In the event an application for a business license, pursuant to this chapter, is denied or refused, the applicant may appeal such decision by filing an action in the Garfield County superior court and serving a copy of the action filed on the city within twenty-one days of the date of the written denial or refusal issued by the city.

 

B. Once an application for business license has been denied or refused, and during the pendency of any appeal therefrom, the applicant shall not engage in the business or activity for which the license was denied or refused unless a final, nonappealable judgment of the Garfield County superior court reverses the decision of the city that is the subject of the appeal.

 

 

            Section 2.  Severability.  If any section, sentence, clause or phrase of this ordinance should be held to be invalid or unconstitutional by a court of competent jurisdiction, such invalidity or unconstitutionality shall not affect the validity or constitutionality of any other section, sentence, clause or phrase of this ordinance.

 

            Section 3.  Publication.           The City Clerk is hereby authorized to publish a summary of this Ordinance consisting of its title in a newspaper of general circulation in the City.

 

Section 4.        Effective Date.            This Ordinance shall be in full force and effect on January 1, 2019.

 

                                                                        APPROVED:

 

 

                                                                        _______________________________

                                                                        MAYOR G. PAUL MILLER 

 

 

ATTEST/AUTHENTICATED:

 

 

___________________________________

CITY CLERK SHAUN MARTIN

 

APPROVED AS TO FORM:

OFFICE OF THE CITY ATTORNEY:

 

___________________________________

BY: CHARLES D. ZIMMERMAN

 

FILED WITH THE CITY CLERK:             _____________

PASSED BY THE CITY COUNCIL:          _____________

PUBLISHED:                                         _____________

EFFECTIVE DATE:                                _____________

ORDINANCE NO.                                 _____________

 

 

SUMMARY OF ORDINANCE NO.

 

of the City of Pomeroy, Washington

 

________________________________________________________________________

 

            On the ______ day of _____________, 2018, the City Council of the City of Pomeroy, passed Ordinance No. ______.  A summary of the content of said ordinance, consisting of the title, provides as follows:

AN ORDINANCE OF THE CITY OF POMEROY, WASHINGTON, AMENDING CHAPTER 5.04 OF THE POMEROY MUNICIPAL CODE TO ADOPT THE STATE MODEL BUSINESS LICENSE LANGUAGE REQUIRED UNDER CHAPTER 35.90 RCW; CONTAINING A SEVERABILITY PROVISION; AND, SETTING AN EFFECTIVE DATE

 

            The full text of this Ordinance will be mailed upon request.

 

            DATED this ______ day of ________________, 2018

 

 

 

                                                            _______________________________________

                                                            CITY CLERK, SHAUN MARTIN

© 2015 by City of Pomeroy

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