Chapter 5.05 BUSINESS TAXES

This chapter is enacted, pursuant to the authority granted to the city council under Cal. Gov’t Code § 37101, to license for revenue every kind of lawful business, profession, or trade in the city. This chapter is enacted solely to raise revenue for municipal purposes and is not intended to license or tax for regulation. Except as provided otherwise in this chapter, any person required to pay a business tax for transacting and carrying on any business under this chapter shall not be relieved from the payment of such business tax, notwithstanding that such business is not in compliance with zoning, health, safety and other regulations of this code or other regulatory provisions of law. Compliance with the provisions of this chapter shall not constitute evidence that such business is in compliance with any other such regulation or provision of law. (Ord. 1876 § 2, 6-6-89. 1990 Code § 5-1101.)

5.05.030 Definitions.

For the purposes of this chapter, unless it is plainly evident from the context that a different meaning is intended, certain terms used herein are defined as follows:

(a) “Agriculture,” when such term is used herein, includes but is not limited to the following: general produce farming, growing of nursery products, growing of any products commonly associated with farming activities, growing of any product to be sold at either wholesale or retail or both, dairying, animal or poultry husbandry, breeding of any animal or fowl, any and all business and occupations dealing with the growing of foodstuffs or products and sale of agricultural products at wholesale.

(b) “Business” includes professions, trades and occupations, and all and every kind of calling whether or not carried on for profit.

(c) “City” means the city of Fremont, a municipal corporation of the state of California, in its present incorporated form or in any later reorganized, consolidated, enlarged, or reincorporated form.

(d) “Collector” means the finance director or other city officer or employee designated by the city manager as responsible for administration and enforcement of this title.

(e) “Employee” means any person engaged in the operation or conduct of any business, whether as a member of the owner’s family, agent, manager, solicitor, or any other person employed or working in said business.

(f) “Fixed place of business” means 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” has the same meaning as “fixed place of business.”

(g) “Gross payroll” means and includes the total gross amount of all salaries, wages, commissions, bonuses, or other money payment of any kind which a person received from or is entitled to receive from or be given credit for by his/her employer for any work done or personal service rendered in any trade as reported on federal, quarterly, or annual payroll Forms 941 and 940; provided, however, that where employees working in the city were reported as having worked elsewhere than in the city, the part of their wages paid or due for work performed in the city shall be included as gross payroll in the city for purposes of this chapter.

(h) “Gross receipts” includes the total of amounts actually received or receivable from all sales; the total amount of compensation 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 part of or in connection with the sale of materials, goods, wares, or merchandise; and gains realized from trading in stocks or bonds, interest income, carrying charges, rents, royalties, fees, commissions, dividends, or other emoluments, however designated. 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, except that the following shall be excluded therefrom:

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

(2) Cash discounts allowed and taken on sales;

(3) 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;

(4) 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 business furnished the collector with the names and addresses of the others and the amounts paid to them;

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

(6) As to alcohol, alcoholic beverages, bars, restaurants, liquor stores, and like businesses dispensing and/or selling alcoholic beverages, only that portion of the gross receipts related to the sale of alcohol shall be exempt;

(7) Amounts received or receivable by persons having a fixed place of business within the city for acts or services performed outside the city, but only to the extent a business tax has been paid to the city or cities in which the acts or services were performed.

(i) “Itinerant vendor” means all persons, both principal and agent, who engage in a temporary and transient business in the city of Fremont – selling goods, wares and/or merchandise – and 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 and/or merchandise, or who from any such room, building or structure makes sales or solicits business by means of samples or deliveries from house to house. The persons so engaged shall not be relieved from the provisions of this chapter 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.

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

(k) “Person” includes all domestic and foreign corporations, associations, syndicates, joint stock corporations, partnerships of every kind, clubs, Massachusetts business trusts, business trusts, or common law trusts, societies and individuals, transacting and carrying on any business within the city, other than as an employee.

(l) “Retail sales” means all sales to the ultimate consumer or end user.

(m) “Sale” includes the transfer, in any manner or by any means whatever, of title to property for a consideration; the serving, supplying or furnishing for a consideration of any properties; 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 definition shall not be deemed to exclude any transaction which is, or which in effect results in, a sale within the contemplation of law.

(n) “Solicitor” means a person engaged in soliciting, canvassing, or taking orders from house to house or from place to place, by telephone or by any other means of communication for any goods, wares or merchandise, for any article to be delivered in the future or for services to be performed in the future, for making, manufacturing or repairing any article whatsoever for future delivery, or for subscriptions to periodicals or tickets of admission to entertainment, or memberships in any clubs.

(o) “Sworn statement” means any affidavit sworn to before a person authorized to take oaths, or a declaration or certification under penalty of perjury.

(p) “Transient business” means every business not conducted as 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 this city.

(q) “Wholesale and manufacturing business” means every business conducted solely for the purpose of selling or manufacturing goods, wares or merchandise in wholesale lots for resale. (Ord. 1876 § 2, 6-6-89; Ord. 2419 § 1, 3-27-01; Ord. 16-2009 § 1, 7-21-09; amended during 2012 reformat. 1990 Code § 5-1102.)

5.05.040 Business tax payment required.

No person shall commence or carry on any business in the city without first having applied for and having paid a business tax and registration tax in accordance with the provisions of this chapter. (Ord. 1876 § 2, 6-6-89. 1990 Code § 5-1103.)

5.05.050 Evidence of doing business.

When a person shall – by the use of signs, circulars, cards, telephone books or newspapers – advertise, hold out or represent that he or she is in business in the city, or when any person holds an active license or permit issued by a governmental agency indicating that he or she 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, then these facts shall be considered prima facie evidence that he or she is conducting a business in the city. (Ord. 1876 § 2, 6-6-89. 1990 Code § 5-1104.)

5.05.060 Constitutional apportionment.

None of the business operations 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 of California.

In any case where a tax is believed by a business or applicant to place an undue burden upon interstate commerce or be violative of such constitutional clauses, he or she 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 business tax. The applicant shall, by sworn statement and supporting testimony, show his or her method of business and the gross volume or estimated gross volume of business and such other information as the collector may deem necessary to determine the extent, if any, of such undue burden or violation. The collector shall then conduct an investigation; and after obtaining the written approval of the city attorney, the collector shall fix an amount that is reasonable and nondiscriminatory as the tax for the applicant. If the tax has already been paid, the collector shall order a refund of the amount over and above the tax so fixed. In fixing the tax to be charged, the collector shall have the power to base the tax upon a percentage of gross receipts or upon any other measure which will assure that the tax assessed shall be uniform with that assessed on businesses of like nature, so long as the amount assessed does not exceed the tax as prescribed by this chapter.

Should the collector determine the gross receipts measure of tax to be the proper basis, he or she may require the applicant to submit, either at the time of termination of the 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 tax therefor; provided, that no additional business operations tax during any one calendar year shall be required after the business shall have paid an amount equal to the annual tax as prescribed in this chapter. (Ord. 1876 § 2, 6-6-89. 1990 Code § 5-1105.)

5.05.070 Administrative rules and regulations – Apportionment.

The city manager may make such rules and regulations, consistent with the provisions of this chapter, as may be necessary or desirable to supplement or clarify such provisions or aid in their enforcement. When, by reason of the provisions of the Constitution of the United States or the state of California, the business tax imposed by this chapter cannot be enforced without an apportionment of the taxes having been made according to the amount of business done in the city of Fremont or in the state of California, as the case may be, the city manager may make such rules and regulations for the apportionment of the tax as are necessary or desirable to overcome the constitutional objections. Rules and regulations made pursuant to this section shall be known as the “business tax rules and regulations,” and shall be in written form, approved by the city attorney and filed with the city clerk. (Ord. 1876 § 2, 6-6-89; Ord. 16-2009 § 2, 7-21-09. 1990 Code § 5-1106.)

5.05.080 Exemptions.

(a) Agriculture. The provisions of this chapter shall not require a business tax payment on the business of agriculture except for the retail activities conducted in connection therewith.

(b) Exemptions Shall Not Apply to Profit Corporations, Associations, Etc. Every institution, corporation, organization or association that qualifies for nonprofit, tax-exempt status under either state or federal law seeking an exemption pursuant to this section shall submit the original exemption certificate plus an annual tax-exempt status to the collector.

(c) Youth and Senior Part-Time Occupations. Any person under the age of 18 or over the age of 65 shall be exempt if gross receipts do not exceed the greater of: (1) $1,417 per month or $17,000 per year; or (2) the maximum amounts identified in Social Security regulations for the relevant calendar year.

(d) Veterans. All veterans qualifying under Cal. Bus. & Prof. Code § 16001 will be granted the exemption as set forth in that section.

(e) Public Utilities. An exemption shall apply to any public utility which makes an annual franchise payment to the city. This exemption applies only to the business conducted under the franchise agreement.

(f) Highway Carriers. Persons who operate vehicles for hire and pay public utilities commission taxes for inter-city (between cities) activities shall be exempt. Pursuant to the California Public Utilities Code (Highway Carriers Uniform Business License Tax Act), Chapter 3, Sections 4301 et seq. and the regulations promulgated thereunder, intra-city (within the city) business activities shall not be entitled to such exemption.

(g) Bank/Financial Institutions. Any bank or financial institution which pays taxes under Cal. Rev. & Tax. Code §§ 23181 and 23182 shall be exempt.

(h) Insurance Companies. Insurance companies are exempt under the provisions of California Constitution Article XIII, Section 28. Independent insurance brokers shall not be exempt.

(i) Revocation of Exemptions. An exemption will be revoked whenever there is reason to believe that any person to whom a tax-exempt certificate was issued pursuant to this section has furnished false or misleading information in the affidavit. (Ord. 1876 § 2, 6-6-89; Ord. 2419 § 2, 3-27-01; Ord. 16-2009 § 3, 7-21-09. 1990 Code § 5-1107.)

5.05.090 Clean technology businesses and biotechnology businesses – Temporary exemption.

(a) Clean technology businesses and biotechnology businesses may be exempt from the business tax payment required by this chapter for up to five consecutive years: existing businesses may be exempt for two consecutive years and new businesses may be exempt for five consecutive years. In order to be eligible for this exemption a person must file an application with the collector for designation as a clean technology business or biotechnology business no later than December 31, 2021. This exemption does not apply to the annual registration tax provided for in Section 5.05.230, which shall continue to be due and payable on an annual basis.

(b) For purposes of this section, the following terms are defined as set forth:

(1) “Biotechnology business” or “BTB” means a business that researches and applies the scientific manipulation of living organisms to develop or produce therapeutics, diagnostic products and/or devices targeted to the improvement of human or animal health care.

(2) “Clean energy” means energy produced by wind, solar power, landfill gas, geothermal resources, ocean thermal energy conversion, quantifiable energy conservation measures, tidal energy, wave energy, biomass, biofuels, or hydrogen fuels derived from renewable sources. Clean energy does not include any fossil fuel-based energy production, including, but not limited to, clean coal, clean diesel, natural gas and hydrogen from natural gas, any nuclear-based energy production, waste-to-energy production via combustion or incineration, or other energy technologies derived from nonrenewable resources.

(3) “Clean technology business” or “CTB” means a business in which at least 75 percent of all business activities carried on during the tax year are directly related to one or more of the following activities:

(A) Research and development and/or associated manufacturing applying scientific advances to the production, distribution or storage of clean energy.

(B) Research and development and/or associated manufacturing applying scientific advances to prototype or commercially viable materials and products powered by clean energy, including but not limited to single passenger vehicles and fueling infrastructure.

(D) Research and development and/or associated manufacturing applying scientific advances to prototype or commercially viable techniques, materials and products that materially improve energy efficiency, water conservation or air quality.

(E) Research and development and/or associated manufacturing applying scientific advances to chemistry-based products and processes that use sustainable chemistry techniques to reduce or eliminate the use and generation of substances that are toxic to humans and the environment.

(4) “Clean technology or biotechnology business review team” or “business review team” refers to a team comprised of the collector plus a representative from the economic development department and a representative from the planning division of the community development department whose purpose is to review and determine applications for the CTB or BTB exemption.

(c) In order to be eligible for the CTB or BTB exemption authorized under this section, persons wishing to claim the exemption must:

(1) Complete and submit an initial application to the collector for review and evaluation.

(2) After approval, file an annual sworn statement with the collector affirming that they continue to meet the eligibility criteria. The sworn statement must be filed with the collector on or before January 31st of every year after the year the application is first approved.

(3) File an annual business tax return renewal with the collector regardless of the amount of tax liability shown on the return after claiming the CTB or BTB exemption.

(d) The collector shall:

(1) No later than the effective date of the ordinance codified in this section, adopt regulations and forms regarding eligibility and the application process for the CTB and BTB exemption, which may be amended from time to time as the collector deems necessary.

(2) Review all applications for completeness and convene a meeting of the business review team to consider and make a determination on eligibility for the CTB or BTB exemption. If an application is approved by the business review team, the collector shall issue a CTB or BTB exemption certificate to the applicant.

(e) The applicant may appeal the business review team’s decision on the application to the finance director, by filing a written notice of appeal with the collector no later than 10 days after notice of the decision. The finance director’s decision on the application shall be final and conclusive.

(f) The BTB and CTB exemption under this section shall be available and may be taken for each tax year that the business holds a valid certificate of exemption.

(1) For new businesses commencing operations in the city after January 1, 2016, the exemption shall be available for a period of five consecutive years from the date of issuance of the initial certificate.

(2) For businesses existing in the city prior to January 1, 2016, the exemption shall be available for a period of two consecutive years from the date of issuance of the initial certificate.

The opportunity to apply for an exemption shall expire December 31, 2021. Every person engaging in a clean technology business or biotechnology business in the city shall pay the business tax imposed under this chapter from and after the expiration of the exemption. (Ord. 4-2012 § 1, 3-20-12; Ord. 24-2016 § 1, 12-6-16. 1990 Code § 5-1107.1.)

5.05.100 Taxpayer information required – Determination of business classification.

Prior to the commencement of a newly established business subject to the requirements of this chapter, a business tax application shall be submitted to the collector. Each applicant shall provide the required information to determine the nature of the proposed business in order to determine the proper business classification(s). The application shall contain a declaration attesting to the accuracy of the information provided signed by the applicant under penalty of perjury.

Once the collector has determined the proper business classification based on the predominant business activity, the business tax shall be computed, imposed and paid in accordance with the provisions of this chapter applicable to the classification. In cases where a business has multiple predominant business activities, the collector may assign more than one classification to the business, and business tax shall be computed, imposed and paid accordingly. Once established, all businesses shall file a business tax return renewal prior to the applicable tax period as prescribed in Section 5.05.150. (Ord. 1876 § 2, 6-6-89; Ord. 16-2009 § 5, 7-21-09. 1990 Code § 5-1108.)

5.05.110 Branch establishment.

A separate business tax and registration tax shall be paid for each branch location and for each type of business at the same location. A person who provides goods, services, music or amusement by vending machines or coin-operated devices shall be subject to one registration tax for all such machines or devices within the city. Persons with billboards shall also pay one registration tax and combine total gross receipts for all billboards located within the city. (Ord. 1876 § 2, 6-6-89. 1990 Code § 5-1109.)

5.05.120 Extension of filing date – Penalties – Interest.

Any person requesting an extension for filing any required sworn statement shall do so in writing prior to the delinquency date of business tax payment. In addition to the other powers conferred upon him or her, the collector shall have the power, for good cause shown, to extend the time for filing any required sworn statement for a period not to exceed 60 days from the due date, and in such case to waive any penalty that would have accrued, except interest which shall accrue at one percent per month until paid. (Ord. 1876 § 2, 6-6-89. 1990 Code § 5-1110.)

5.05.130 Audit of statements and records – Failure to comply.

Records which shall be maintained for audit purposes shall include state and federal income tax returns, schedules and records included in such returns, any and all work papers used to prepare such returns, and in the case of businesses whose business tax is computed upon a gross payroll basis, quarterly and annual state and federal payroll tax returns.

All persons subject to the provisions of this chapter shall keep complete records of all business transactions and shall retain such records for examination by the collector and maintain them for a period of at least three years from the annual due date of the federal tax return or the city business tax return, whichever time period is greater. No person required under this section to keep records shall refuse to allow authorized representatives of the collector to examine said records at reasonable times and places.

A mistake made in stating the amount of the business tax shall not, in any case, prevent or prejudice the collector from collecting what is actually due from any person or entity carrying on a trade, calling, profession or occupation subject to a business tax under this chapter.

If any person, subject to the tax imposed by this chapter, fails to submit information required, or if the collector is not satisfied with records and statements filed, the collector shall determine the amount of the business tax due from such person by means of such information as he or she may be able to obtain and shall mail a notice of the amount so assessed by serving it personally or by depositing it in the United States Post Office at Fremont, California, postage prepaid, addressed to the person at his or her last-known address. (Ord. 1876 § 2, 6-6-89. 1990 Code § 5-1111.)

5.05.140 Confidential documents and disclosure to other agencies.

The statements filed pursuant to the provisions of this chapter shall be deemed confidential in character, shall not be subject to public inspection, and shall be kept so that the contents thereof shall not become known except to the collector or authorized representative.

Nothing in this section shall be construed to prevent the following: the disclosure to or examination of records by another city agent; federal, state or county officials; a grand jury or court of law, upon subpoena, or in a proceeding to determine the existence or amount of any tax liability of the particular taxpayer to the city; the disclosure of the names and addresses of taxpayer pursuant to this chapter, and the general type or nature of their business, together with general statistics regarding business taxes collected or business done in the city. (Ord. 1876 § 2, 6-6-89. 1990 Code § 5-1112.)

5.05.150 Business tax – When payable and delinquent – Penalties and interest.

(a) All business taxes due under the terms of this chapter shall be payable in advance of the applicable tax period prescribed as follows:

(1) Businesses subject to daily business taxes: Taxes shall be paid on their effective date and shall be delinquent at 5:00 p.m. on that date.

(2) Businesses subject to monthly business taxes: Taxes shall be paid on the first day of each month for which the business tax is sought and shall be delinquent at 5:00 p.m. on the tenth day of that month.

(3) Businesses subject to quarterly business taxes: Taxes shall be paid on the first day of January, April, July and October and shall be delinquent at 5:00 p.m. on the last day of the first month in which the quarterly business tax is due.

(4) Existing businesses subject to annual business taxes: Taxes shall be paid on the first day of January and shall be delinquent at 5:00 p.m. on the last day of February.

(5) New businesses subject to annual business taxes: Taxes shall be paid on the first day of January, April, July and October. Taxes due on January 1st shall be delinquent at 5:00 p.m. on the last day of February; all other businesses with due dates of April 1st, July 1st and October 1st shall be considered delinquent at 5:00 p.m. on the last day of the month of their due date.

Provided, that the business tax imposed pursuant to Section 5.05.280 shall be due and payable in accordance with the provisions of said section.

(b) For failure to pay a business tax when due, the collector shall add a penalty of five percent per month of said business tax, including the registration tax, and shall in no event exceed 25 percent of the business tax due. Where an audit or inspection of the books or records of a business reveals the amount of business tax paid for any business tax period is less than the amount which was actually due, it shall be deemed for purposes of this subsection that such deficiency was a failure to pay a business tax when due. All taxes imposed and remaining unpaid after delinquency, including any deficiency in payment of taxes, shall bear interest at the rate of one percent per month or fraction thereof until paid. Penalties and interest as provided in this subsection shall be assessed from the date when said deficiency was required to be paid pursuant to this chapter.

(c) The collector may, for good cause shown, waive all or any part of any otherwise applicable penalty and interest. (Ord. 1876 § 2, 6-6-89; Ord. 1889 § 1, 10-3-89; Ord. 1-2013 § 5, 1-8-13. 1990 Code § 5-1113.)

5.05.160 Refunds.

No tax collected under the provisions of this chapter shall be refundable or prorated in any manner; except that if the business subject to the tax establishes to the satisfaction of the collector that it has overpaid the business tax and files a claim with the collector for refund of such overpayment within a period of three years from the day on which the overpayment was made, the collector may refund, or allow credit on a renewal, of the sum so overpaid. Upon request by the collector, the taxpayer shall provide accounting records to verify the amount of refund requested. (Ord. 1876 § 2, 6-6-89; Ord. 2419 § 3, 3-27-01. 1990 Code § 5-1114.)

5.05.170 Misrepresentation.

No person shall knowingly or intentionally misrepresent to any officer or employee of the city any material fact in any statement or other information submitted to the collector or other agent of the city in connection with the administration and enforcement of this chapter. Any person who, with the intent to defraud the city of Fremont or evade his or her business tax obligation, shall misrepresent in any business tax return which he or she files any fact material to the determination of a correct amount of business tax due, shall be assessed a penalty of 25 percent of the amount of business tax due plus one percent interest per month, or fraction thereof, on the unpaid amount from the date the tax was due until the date of payment. (Ord. 1876 § 2, 6-6-89. 1990 Code § 5-1115.)

5.05.180 Appeals.

The collector shall give written notice to the taxpayer of any determination made regarding any amounts due to the city, taxpayer compliance, claims for tax exemptions or any other decision required under this chapter. The taxpayer may appeal any determination made by the collector in accordance with this chapter by filing a written notice of appeal with the collector no later than 10 days after notice of the determination. The appeal shall be heard by the city manager or designee, whose decision on the matter shall be final and conclusive. (Ord. 1876 § 2, 6-6-89; Ord. 2419 § 4, 3-27-01; Ord. 16-2009 § 6, 7-21-09. 1990 Code § 5-1116.)

5.05.190 Enforcement.

It shall be the duty of the collector, as directed, to enforce each and all of the provisions of this chapter. The chief of police, chief building official and community development director shall render assistance as may from time to time be required by the collector, city manager or the city council. The collector and his/her authorized assistants shall examine, or cause to be examined, all places of business in the city to ascertain whether the provisions of this chapter have been complied with. The collector shall have the power and authority to enter free of charge, at any reasonable time, any place of business to demand an exhibition of proof of business tax payment. (Ord. 1876 § 2, 6-6-89; amended during 2012 reformat. 1990 Code § 5-1117.)

5.05.200 Business tax a debt.

The amount of any business tax, registration tax, penalty and interest imposed by the provisions of this chapter shall be deemed a debt to the city; and action may be commenced in the name of said city in any court of competent jurisdiction for the amount of any delinquent business tax, to include registration tax, applicable penalties and interest. The time for commencement of any such action shall be within three years from the date the tax became due and payable as in the case of any liability created by statute. (Ord. 1876 § 2, 6-6-89. 1990 Code § 5-1118.)

5.05.210 Remedies cumulative.

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. 1876 § 2, 6-6-89. 1990 Code § 5-1119.)

5.05.220 Severability.

If any section, subsection, sentence, clause, phrase, or portion 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 affect the validity of the remaining portions of this chapter. (Ord. 1876 § 2, 6-6-89. 1990 Code § 5-1120.)

Article II. Business Tax Rates and Measures

5.05.230 Registration tax.

Every person engaged in carrying on any business, trade, profession, calling, or occupation specified in this chapter shall, as a portion of the business tax imposed, pay a registration tax of $30.00 per year, $10.00 per quarter or $4.00 per month, upon commencing business and annually, quarterly or monthly, as appropriate thereafter. All other business taxes provided for in this chapter for the privilege of engaging in any business are imposed in addition to the registration tax. The registration tax shall not be refundable except as provided in Section 5.05.160 and shall not be prorated. The registration tax is due and payable prior to the commencement of a newly established business and is due and payable at the same time as any other business tax which is due and payable pursuant to this chapter. A separate registration tax shall be due for each fixed place of business and for each business not having a fixed place of business.

A new registration transfer tax shall be paid under the following circumstances:

(a) When a person transfers 50 percent or more of his/her interest (or more than 50 percent of the stock or assets of a business operated at a fixed place of business), the transferee shall first report such change to the collector and pay a registration transfer tax in the amount of $30.00 regardless of whether the transfer is made under such circumstances that the real or ultimate ownership after the transfer is substantially similar to the ownership existing before the transfer.

(b) When a person transfers the location of a fixed place of business within the city, or changes the name of the business, he or she shall first report such change to the collector and pay a registration transfer tax of $30.00.

(c) When a person simultaneously makes more than one transfer or change described in subsection (a) or (b) of this section he or she shall pay only one registration transfer tax.

(d) When effecting a transfer of ownership as described in subsection (a) of this section, the new owner must furnish documentary proof indicating the nature of the transaction. Also, the transferee shall pay a business tax and registration tax for such period as would have been required of the former owner. Such tax as applicable shall be due upon the date of the transfer. In the event the transferee is unaware of the gross receipts or gross payroll of the transferor, the transferee shall furnish his or her gross receipts or gross payroll and such other information as the collector may deem necessary to determine the tax due. The collector shall then compute and fix as the business tax for the transferee an amount that is reasonable and nondiscriminating and the approximate amount that the transferor would have paid the city had the transfer of ownership not been effected. (Ord. 1876 § 2, 6-6-89; amended during 2012 reformat. 1990 Code § 5-1200.)

5.05.240 Retail sales.

Every person conducting, carrying on, or managing any business which consists predominantly of selling at retail any goods, wares, merchandise or commodities shall pay an annual business tax of $0.25 for each $1,000 of gross receipts. For purposes of this section, all persons operating a business consisting of retail and/or wholesale sales which operates from a residential district shall pay an annual business tax of $0.30 for each $1,000 of gross receipts. (Ord. 1876 § 2, 6-6-89; Ord. 16-2009 § 7, 7-21-09. 1990 Code § 5-1201.)

5.05.250 Business/personal services.

Every person conducting, carrying on or managing any business consisting of providing services for other persons, repairs or improvements to or on real or personal property, or the renting and leasing of personal property shall pay an annual business tax of $1.00 for each $1,000 of gross receipts. (Ord. 1876 § 2, 6-6-89; Ord. 16-2009 § 8, 7-21-09. 1990 Code § 5-1202.)

5.05.260 Professionals.

(a) Generally. Every person conducting, carrying on, or engaged in a profession or vocation requiring a period of specialized training and certification shall pay an annual business tax of $1.30 for each $1,000 of gross receipts.

(b) Real Estate Broker.

(1) A real estate broker who has a fixed place of business in the city shall pay an annual business tax of $38.00 for each fixed place of business, plus an additional business tax of $25.00 for each person performing services at such fixed place of business as a licensed real estate salesperson, not including the broker, office manager or other salesperson in charge of the office.

(2) A real estate broker who does not have a fixed place of business in the city shall not be deemed to be doing business in the city unless in a calendar year he or she has been engaged in three or more revenue-generating transactions with respect to real property in the city or earned $10,000 or more in commissions or fees with respect to real property in the city, whichever occurs first. Whenever such a real estate broker has earned such amount in fees or commissions, or has been engaged in three or more revenue-generating transactions with respect to real property in a calendar year, whichever occurs first, he or she shall be required to pay a business tax of $30.00 for such calendar year.

(3) As used in this section, “transaction” shall mean performance of services as a selling broker with respect to real property, or performance of services as a listing broker with respect to real property which has been sold during the listing period, or performance of service as an appraiser of real property. Where a sale of real property is consummated by a broker who is also the listing broker with respect to the property involved, two transactions shall be deemed to have occurred with respect to such broker.

(4) If a real estate broker, who has a fixed place of business in the city, also operates a real estate office in another city, any Fremont listings or sales generated from the out-of-town location shall be deemed to be operations of a real estate broker not having a fixed place of business in the city of Fremont for purposes of this section. (Ord. 1876 § 2, 6-6-89; Ord. 16-2009 § 9, 7-21-09. 1990 Code § 5-1203.)

5.05.270 Contractors.

(a) Every person conducting, carrying on or managing a business as a licensed contractor and who undertakes to, or offers to undertake to, or purports to have the capacity to undertake to, or submits bids to, or does himself or herself or by or through others, construct, alter, repair, add to, subtract from, improve, move, wreck or demolish any building, highway, road, railroad, excavation, or other structure, project, development or improvement, or to do any part thereof, including the erection of scaffolding or other structures or works in connection therewith, is defined as a contractor. The term “contractor” as used in this section also includes subcontractors and specialty contractors.

(1) Every contractor with a fixed place of business in the city shall pay an annual business tax of $95.00 per calendar year, plus $0.10 for each $1,000 of gross receipts.

(2) Every contractor who does not have a fixed place of business in the city shall pay a business tax of $30.00 per calendar quarter, plus $0.10 for each $1,000 of gross receipts.

(b) Any newly established contractor with a fixed place of business in the city may have the business taxes prorated depending upon the calendar quarter said business begins operating. A contractor who does not have a fixed place of business in the city may elect to pay a business tax on an annual basis in accordance with subsection (a)(1) of this section.

(c) For purposes of this section, the gross receipts of a contractor shall not include the gross receipts only of any persons attributable to construction, structural additions, or improvements for which a tax is required pursuant to Section 5.05.280 (where such person is required to pay a tax pursuant to such section); provided, that such contractor lists his/her subcontractors and the amounts paid or payable to such subcontractors for any such construction. (Ord. 1876 § 2, 6-6-89; amended during 2012 reformat. 1990 Code § 5-1204.)

5.05.280 Construction tax.

(a) Every person who constructs a new dwelling, makes additions in habitable space to any existing dwelling, or improves land as a mobile home lot shall be subject to a business tax consisting of a flat rate for new residential construction or mobile home lots, or a square footage tax on all additions to existing residential structures for such construction. The collector shall set the annual rates effective July 1st of each year based on the changes in the gross national product (GNP) deflator.

The addition to a dwelling of a patio structure, garage or shed shall not be deemed to add habitable space to a dwelling. The number of square feet of floor area shall be determined by the building official based on the data submitted by the applicant.

(b) The business tax shall be due and payable upon the issuance of the building permit. No building permit shall be issued until such tax has been paid.

(1) In the case of improvement of land in a mobile home lot, the business tax shall be due and payable upon commencement of the improvement. No work shall be commenced until the tax has been paid. Delinquency penalties for failure to pay when due shall be as prescribed in Section 5.05.150(a).

(2) The tax shall be paid by or on behalf of the contractor/owner as taxpayer to the collector, who shall certify such payment to the building official.

(c) The business tax shall be refundable in the event that the building permit is issued and has thereafter expired and become null and void because the building and work authorized by such permit was not commenced within 180 days from the date of such permit.

(d) Any person who is required to pay a business tax pursuant to this section shall only be required to pay the contractors flat rate as prescribed in Section 5.05.270. (Ord. 1876 § 2, 6-6-89. 1990 Code § 5-1204.1.)

5.05.290 Wholesalers, manufacturers, other businesses.

(a) Every person conducting, carrying on or managing any business consisting of manufacturing or selling at wholesale any goods or merchandise, maintaining administrative offices with minimal sale of goods, merchandise or services, or providing telephone or telegraph services shall pay an annual business tax of $0.30 for each $1,000 of gross payroll.

(b) Every person conducting, carrying on or managing a business of quarrying shall pay an annual business tax of $1.00 for each $1,000 of gross payroll. For the purposes of this section, “quarrying” shall also mean producing earth, rock, crushed stone, building stone, slate, limestone, gravel, sand, minerals, or other similar material products. (Ord. 1876 § 2, 6-6-89. 1990 Code § 5-1205.)

5.05.300 Recreation and entertainment.

(a) Every person conducting, carrying on or managing any business consisting of entertainment, recreation or amusement shall pay an annual business tax of $1.50 for each $1,000 of gross receipts. This classification includes but is not limited to: archery ranges/instruction, bowling alleys, firearm shooting ranges, golf courses/instruction, ranges, indoor and outdoor motion picture theaters, pool and billiard halls, rental animals for recreation riding, skating rinks, sporting events, swimming pools, theaters at which live entertainment is presented, vehicle courses/racing, game or computing arcades.

(b) Every person whose business is of a temporary nature and is unable to determine to the satisfaction of the collector their gross receipts shall pay a business tax as follows: amusement rides, $11.00 per day per ride; entertainment, occasional or casual, $0.25 per seat per day; public dancing, $63.00 per day or $103.00 per quarter; street musicians, $11.00 per day per person. (Ord. 1876 § 2, 6-6-89; Ord. 19-2004 § 3, 7-13-04. 1990 Code § 5-1206.)

5.05.310 Rental property/housing.

(a) Every person conducting, carrying on, or managing any business of offering for lease or rental any residential real property, commercial real property or industrial real property shall pay an annual business tax of $1.30 for each $1,000 of gross receipts. For purposes of this section, persons who rent, lease or manage no more than four residential dwelling units shall not be deemed to be in business. This exception shall not apply to persons who rent five or more residential dwelling units, or who rent any commercial or industrial real property in the city. Persons who rent commercial or industrial real property in the city shall also report all residential units.

(b) Every person conducting, carrying on or managing a trailer court, mobile home park or similar enterprise shall pay an annual business tax of $12.00 for each $1,000 of gross receipts.

Each person who rents real property to others and is subject to this tax shall not be required to pay more than one registration tax for all lots (including buildings) in the city.

The business taxes provided for herein are cumulative. If the same lot, dwelling unit, office or other space, or any portion thereof is leased and subleased to more than one person in the same time period, each separate lease or sublease to each person shall constitute the rental of a rental unit. Taxes provided for herein are in addition to any business taxes which may be required to be paid by real estate brokers, agents or other persons engaged in business and taxes pursuant to other provisions of this chapter.

(c) Every person conducting, carrying on or managing any business of renting out accommodations substantially on a transient occupancy basis shall pay a business tax of $1.00 for each $1,000 of gross receipts. This classification includes but is not limited to hotels, motels, bed-and-breakfast inns, etc. (Ord. 1876 § 2, 6-6-89. 1990 Code § 5-1207.)

5.05.320 Transportation – Out-of-town businesses.

Every person with no fixed place of business in the city who is engaged within the city in a business of conducting, managing or running, driving or operating any vehicle used for transportation, selling, collecting, or delivery of goods, merchandise, or other personal property of any kind, or of soliciting for work, labor or services to be performed upon the public streets in or from a vehicle shall pay a business tax of $30.00 per year in advance per vehicle used in the city. However, such persons may elect to pay a tax pursuant to Section 5.05.250 for all remaining tax periods other than the original tax period. (Ord. 1876 § 2, 6-6-89. 1990 Code § 5-1208.)

5.05.330 Miscellaneous businesses.

(a) Carnival or Circus. Any person conducting, carrying on or managing any business which consists of operating a carnival or circus shall pay a business tax of $420.00 for the first day of operation and $210.00 for each additional day of operation.

(b) Canvassers and Solicitors. Any person who engages in the business of going from house to house, place to place, on or along the streets within the city, or by telephone, selling or taking orders for, or offering to sell or take orders for, goods, merchandise or other things of value for future delivery or for service to be performed in the future shall pay a business tax of $85.00 per person per calendar quarter or $35.00 per person per month.

Any business which conducts its business through the use of persons assigned as solicitors to established and defined routes regularly serviced by such solicitors may, pursuant to Section 5.05.240, pay an annual business tax in lieu of the tax for each solicitor prescribed by this section, based on the total annual gross receipts derived from all orders solicited by such solicitors. Regular service to a route shall be deemed to have been accomplished if in each quarter not less than 50 percent of the houses and places upon a route from which an order was taken in the same or previous quarter are solicited, canvassed or an order taken.

(c) Christmas Tree Lots. Any person conducting, carrying on or managing any business consisting of selling Christmas trees shall pay a business tax of $65.00 per month.

(d) Itinerant Vendors. Any person who engages in a temporary business in the city by selling or offering for sale any goods, merchandise or things or articles of value for a period of not more than 120 days in any calendar year shall pay a business tax of $75.00 per month per location per person.

(e) Peddlers.

(1) Any person who engages in the business of going from house to house, place to place, on or along the streets within the city and making immediate delivery or offering for sale and immediate delivery such items as food, beverages, home-manufactured articles, novelties, notions, toys, souvenirs, flowers, medicines, or patent medicines shall pay a business tax of $45.00 per person or vehicle per calendar quarter.

(2) Any person who engages in the peddling of wearing apparel, cloth, furs, jewelry, cosmetics, perfume, toilet articles, silver or plated ware, household furnishings, auto parts or accessories, cooking utensils or any other goods, wares or merchandise not otherwise specifically taxed pursuant to this chapter shall pay a business tax of $210.00 per person per month.

(f) Tool Sharpeners and Curb Painters. Any person traveling from house to house or place to place for the purpose of grinding or sharpening scissors, knives, cutlery or mechanical tools, making keys, or painting house or address numbers upon private real property or an adjacent street curb shall pay a business tax of $25.00 per person per day.

(g) Warehousing. Any person conducting, carrying on or managing any business consisting of maintaining or renting warehouse and storage space shall pay an annual business tax of $65.00 for every 50,000 square feet of floor space. (Ord. 1876 § 2, 6-6-89. 1990 Code § 5-1209.)

Article III. Niles Parking and Improvement Area

5.05.340 Authority.

This chapter is adopted pursuant to the authority of the “Parking and Business Improvement Area Law of 1965” (Cal. Sts. & High. Code Division 18, Part 5, Chapter 1, Sections 36000 et seq.). (Ord. 1283 § 4, 10-17-78. 1990 Code § 5-6100.)

5.05.350 Designation.

There is hereby created and established a parking and business improvement area to be known and designated as the “Niles parking and improvement area of the city of Fremont,” hereinafter sometimes referred to as “area.” (Ord. 1283 § 4, 10-17-78. 1990 Code § 5-6101.)

5.05.360 Benefit zones.

Based upon the degree of benefit derived from the purpose of this chapter, two separate benefit zones hereby are established within the Niles parking and improvement area of the city of Fremont, to be known as “benefit zone I” and “benefit zone II.” (Ord. 1283 § 4, 10-17-78. 1990 Code § 5-6102.)

5.05.370 Description of area and zones.

A description of the boundaries of the Niles parking and improvement area of the city of Fremont is as follows:

Benefit Zone I: Beginning at the northwest corner of Lot 19, Block E, as said lot and block are shown on the map of subdivision of Blocks E, F and G, Mary E. Mortimer Addition to Niles, filed in Book 24 of Maps at page 60, Alameda County Records; thence southerly along the westerly line of said Lot 19 extended south 15.45 feet west 331.78 feet to the southwest corner of Lot 4, Block G; thence easterly along the southerly lines of Lots 4 and 13, Block G, to the southeast corner of said Lot 13; thence easterly along the southerly lines of Lots 7 through 12 of Block 47, Lots 1 through 12 of Block 56, Lots 1 through 12 of Block 57, and Lots 1 through 8, Block 66 of the Official Map of the Town of Niles filed in Book 6 of Maps at page 36, Alameda County Records, to the southeast corner of said Lot 8, Block 66 of said Official Map of Town of Niles; thence northerly three hundred (300) feet more or less along the easterly line of said Lot 8 extended to its intersection with the southerly right-of-way line of the Southern Pacific Railroad; thence westerly to the northwest corner of said Lot 19, Block E, map of subdivision of Blocks E, F and G, Mary E. Mortimer Addition to Niles, the point of beginning.

Benefit Zone II: The following parcels and/or areas are included within Benefit Zone II of the Niles Parking and Business Improvement Area:

(a) Lots 13 through 18, Block E, map of subdivision of Blocks E, F and G, Mary E. Mortimer Addition to Niles.

(b) Lots 1, 2 and 3, Block G, map of subdivision of Blocks E, F and G, Mary E. Mortimer Addition to Niles.

(d) Lots 13, 14, 22, 23 and 24, Block 57, Official Map of Town of Niles.

(e) Lots 27 and 28, Block 66, Official Map of Town of Niles.

(f) Beginning at the southeast corner Lot 8, Block 66 of said Official Map of Town of Niles; thence easterly along the southerly lines of Lots 9 through 14, Block 66 to the southeast corner of said Lot 14; thence northerly along the easterly line of said Lot 14 extended to the southerly line of the Southern Pacific Railroad, said line also being the northerly property line of Assessor’s Parcel No. 507-150-1-2; thence northwesterly and westerly along said southerly right-of-way line of the Southern Pacific Railroad to a point of intersection with the northerly extension of the easterly line of said Lot 8, Block 66 of the Official Map of the Town of Niles; thence southerly along said extension of the easterly line of Lot 8 to the point of beginning.

For purposes of graphic illustration, the boundaries of said area and benefit zones are shown on that certain map entitled “Niles Parking and Improvement Area of the City of Fremont” on file with the city clerk of the city of Fremont. (Ord. 1283 § 4, 10-17-78. 1990 Code § 5-6103.)

5.05.380 Additional levy of business tax.

An additional rate or levy of business license tax (business tax) on businesses conducting their business activities in the area, which is in addition to the regular business tax imposed upon such businesses by this chapter, is hereby imposed as follows:

(a) Benefit zone I: An additional rate or levy equal to 100 percent of the regular business tax;

(b) Benefit zone II: An additional rate or levy equal to 50 percent of the regular business tax;

(1) The following businesses shall be entirely exempt from the additional rate or levy: contractors, auto repair shops, car washes and janitorial services;

(2) Rental of multiple dwellings (apartments) shall be subject to 50 percent of the rate or levy otherwise imposed in the benefit zone;

(3) All businesses exempt by law from payment of a business tax pursuant to this chapter. (Ord. 1283 § 4, 10-17-78. 1990 Code § 5-6104.)

5.05.390 Definitions and classifications.

The definitions and classifications of businesses set forth in this chapter shall be determined by the definitions and classifications as set forth in this chapter. (Ord. 1283 § 4, 10-17-78. 1990 Code § 5-6105.)

5.05.400 Collection of additional tax.

All businesses within the boundaries of the area, not exempt by law, shall be subject to the provisions of the additional business tax imposed by this chapter. The collection of the additional business tax imposed by this chapter shall be made at the same time and in the same manner as the regular business tax under the provisions of this chapter, and such tax shall be computed in the manner provided in this chapter for each such business (subject to the provisions of Section 5.05.390), and shall be due and payable and subject to the penalties provided in this chapter. (Ord. 1283 § 4, 10-17-78. 1990 Code § 5-6106.)

5.05.410 Voluntary contribution.

Any business, or other person, including any business which is exempt from payment of a regular business tax under this chapter, or is exempt from payment of an additional business tax under this chapter, may make a voluntary contribution to the city to be used for the purposes of this chapter. (Ord. 1283 § 4, 10-17-78. 1990 Code § 5-6107.)

5.05.420 Proposed use – Parking lot.

The use to which the revenue received by the city from the additional business tax imposed by this chapter shall be put is the maintenance of parking facilities (a parking lot) for the benefit of the area, including annual administrative costs incurred in connection with such maintenance not exceeding 20 percent of said revenues received in any calendar year. (Ord. 1283 § 4, 10-17-78. 1990 Code § 5-6108.)