Chapter 5.04 BUSINESS LICENSES GENERALLY

A. It is necessary that business license fees be levied and fixed to regulate, to protect the public welfare and to secure revenue to assist in defraying the cost of providing police and fire protection and other municipal services necessary for the implementation and the enforcement of this chapter.

B. The fee required by this chapter shall be in addition to general ad valorem taxes now or hereafter levied under law and shall be in addition to license fees prescribed in other ordinances.

C. Neither the acceptance of the prescribed fee nor the issuance of the applicable license shall be construed to constitute a regulation of any business activity or a permit to engage in any activity otherwise prohibited by law or this chapter, or a waiver of any regulatory licensing requirement imposed by any ordinance, state or federal law. [Ord. 11-02 § 2, 2011.]

5.04.030 Definitions.

A. In this chapter the word “business” means any trade, profession, occupation or pursuit conducted for gain and specifically includes (without limitation) the following:

1. Those persons who cater to the general public by selling merchandise or rendering professional or nonprofessional services; for example, a shoe store, attorney’s office, doctor’s office, public accountant, welding shop, or cannery, or apartment houses.

2. Except as named or described in subsection (A)(1) of this section, those persons whose physical plants or facilities are located outside of the city, but whose business requires use of the city’s streets or facilities and whose services or materials are rendered or delivered within the city to the public; for example, a bakery truck delivering wares originating from outside the city but delivered within the city to the public, and other retailers.

3. Door to door sales.

4. Businesses conducting wholesale delivery.

5. Home occupations as defined in CMC Title 17.

6. Businesses engaged in any activity for which registration with the State Construction Contractors Board is required pursuant to ORS Chapter 701, whether the business is providing services to retail consumers or to other businesses licensed within the city under the Business License Act.

7. Any individual or business enterprise which rents three or more parcels or units of real property or improvements or parts of improvements thereon.

B. The word “business” shall not include activities (unless organized to evade the business ordinance) as follows:

1. Corporations, or a community chest, fund or foundation organized and operated exclusively for religious, charitable, scientific, testing for public safety, literary or educational purposes, or for the prevention of cruelty to children or animals, no part of the net earnings of which inures to the benefit of any private shareholder or individual, no substantial part of the activity of which is carrying on propaganda, or otherwise attempting to influence legislation, and which does not participate in, or intervene in any political campaign on behalf of any candidate for public office, including the publishing or distributing of statements;

2. Civic leagues or organizations not organized for profit but operated exclusively for the promotion of social welfare, and the net earnings of which are devoted exclusively to charitable, educational or recreational purposes. Persons providing day care services for children in the person’s home where the person has obtained a child care certificate of registration without inspection from the Child Care Division of the state of Oregon and is operating in a manner consistent with that certificate;

3. Isolated party sales businesses. “Isolated” shall mean not more than three party sales per year conducted by the business owner and/or any associates thereof. Party sales shall refer to sales made in the course of a party called for the purpose of showing products. An example of “party sales” is the sales made at a Tupperware party;

4. Bazaars conducted by nonprofit businesses;

5. Real estate companies conducting limited sales in the city unless the company maintains an office in the city;

6. Trade shows;

7. A business conducted by and for children who are under the age of 16 years of age who are personally providing otherwise legal goods and/or services;

8. Public utilities covered by franchise ordinances and paying fees under the franchise are exempted from the provisions of this chapter;

9. Any person transacting and carrying on any business within the city which is exempt from a license fee or tax or regulation by virtue of the U.S. Constitution, laws of the United States, Oregon Constitution, or laws of the state of Oregon;

10. Churches when conducting religious activities and governmental agencies when conducting governmental functions;

11. A service business operated by a person under the age of 18, such as a lawn mowing business, a newspaper delivery business, a lemonade stand, and the like; or

12. Independent contractors (such as persons licensed by the Oregon State Board of Cosmetology including professionals in the fields of barbering esthetician, hair design and nail technology, and the like) that work in an office building or building of a business that has applied for and obtained a business license that covers the entire building are not required to obtain an individual license. Where the owner of the building has not obtained a business license to cover such independent contractor, the independent contractor is required to obtain a license under this chapter.

C. For the purposes of this chapter, the word “business” shall contemplate that each separate location of a business shall be considered a separate business and each business shall pay the applicable business license fee required under this chapter. Any branch of a business engaged in a separate business as defined in this chapter shall also pay a separate business license fee. Warehouses used solely incidental to a business levied pursuant to the provisions of this chapter and operated by the person conducting the business shall not be a separate place of business. Physically segregated parts of a business, the use of which is a necessary function toward the complete operation of the business, shall not be considered a branch establishment. If two or more businesses are carried on at the same premises by the same owner, one license issued in the name of the business for which the premises is primarily used shall be sufficient for all such activities. A business activity leased, under concession to, or owned wholly or in part by a different person or persons on the same premises must be separately licensed. In determining whether different activities on the same premises are related to the primary use within the meaning of this section, normal and ordinary custom and usage of businesses of like nature shall be considered. The city shall rely on the SIC code in determining whether or not a business is a separate business.

D. For the purposes of this chapter, no person whose income is based solely on an hourly, daily, weekly, monthly or annual wage or salary paid by an unrelated entity shall be considered a person transacting and carrying on a business. The intention of the city council is that all business fees levied by this chapter shall be borne by the employer or proprietor for the privilege of doing business and shall not be borne by the employee as a cost of employment.

E. Nothing in this chapter shall be construed to apply to any person transacting and carrying on any business within the city which is exempt from a license fee or tax or regulation by virtue of the Constitution or laws of the United States or the Constitution or laws of the state of Oregon. Federal, state and municipal corporations are exempt from this Act.

F. “Business license administrator,” under this Act, means city recorder or designee.

G. A “full-time equivalent employee” (FTE) is defined for those persons working for an hourly wage as the total number of annual employee hours divided by 2,080. (For example, a restaurant which employed 15 people who worked a total of 20,800 hours annually would have 10 full-time equivalent employees (FTE) and pay a business license fee of $100.00.) A “full-time equivalent employee” (FTE) working for other than an hourly wage is defined as those persons who work an average of 25 hours per week or more in exchange for their salary, commission or other form of compensation. The business license administrator shall have the power to adopt reasonable further definitions of full-time equivalent employee (FTE) consistent with this chapter. [Ord. 11-02 § 3, 2011.]

5.04.040 Operation without securing license or payment of fee.

A. No person shall carry on any business, trade, occupation, profession or calling, or transact any business as defined in this chapter, without first paying in advance the business fee imposed by this chapter and obtaining a business license.

B. If the business is owned by a corporation, it shall be the responsibility of the local business manager to pay the fee imposed. [Ord. 11-02 § 4, 2011.]

5.04.050 License duration.

New licenses shall be valid from February 1st, and shall be renewable annually from the date of issuance to the following January 31st, each and every subsequent year. [Ord. 11-02 § 5, 2011.]

5.04.060 Application for license.

Each person wishing to engage in a new business shall apply for a license to carry on business for the license year. Suitable blanks will be furnished by the city. At the time of filing, the applicant shall pay the license fee required. The application shall be filed with the business license administrator and shall contain:

A. A description of the trade, shop, business, profession, occupation or calling.

B. The name and address of the applicant; if a partnership, the names and addresses of the several partners; if the business is a corporation, its name and the address of the home office, the name and address of the designated agent in the state if a foreign corporation, and the name and address of the local agent or representative who will be in charge of the business in the city.

C. The address where the business will be located or have its city office.

D. The amount of license fee tendered with the application.

E. For each applicant engaged in a business which is subject to regulation under ORS Chapter 701 (Construction Contractors):

1. A signed statement that the applicant is registered under the provisions of ORS Chapter 701, and stating that the registration is in full force and effect; and

2. A copy of a current certificate of registration issued by the Oregon Construction Contractors Board.

F. The date of application.

G. Any other information the business license administrator or city council determines that the application should contain for review purposes under this chapter.

H. The signature of the applicant or agent making the application.

I. An agreement holding the city harmless from any and all liability for licensing the business. [Ord. 11-02 § 6, 2011.]

5.04.070 Application review.

The business license administrator may refer each application to the persons or departments designated by the business license administrator for review. The license may not be issued if the business as described in the application would not comply with this chapter, or other city ordinances. Issuance of the license itself does not mean the applicant has complied with all federal or state laws and if it is later determined that applicant has failed to comply with any federal or state law and fails to correct such violation within 30 days the applicant’s license may be revoked as described herein. [Ord. 11-02 § 7, 2011.]

5.04.080 Information from applicant.

A person or department designated to review a license application may require the applicant to supply information necessary to determine, as required under this chapter, the business qualifications for the license. If the applicant fails to supply information so required or submits false or misleading information, the license may be suspended or denied. [Ord. 11-02 § 8, 2011.]

5.04.090 Issuance of license.

A. After receipt of reports from all persons and departments designated to review an application, the business license administrator shall determine whether the business qualified for issuance of a license. If the business qualified, the business license administrator shall issue the license.

B. No license shall be issued to a person if the person has, prior to making application, conducted a business within the city while this chapter was in effect without a current, valid license issued under this chapter, unless an additional amount equal to the license fee for the period during which the business was thus conducted is paid. [Ord. 11-02 § 9, 2011.]

5.04.100 Denial of application.

If, on the basis of the application review under this chapter, the business license administrator determines that the business does not qualify for issuance of the license applied for, the business license administrator shall notify the applicant in writing that the application has been denied. The notice shall state the reason for denial and inform the applicant of the provisions for appeal in this chapter. [Ord. 11-02 § 10, 2011.]

5.04.110 License renewal and late penalty.

The application for renewal of a business license shall be made to the business license administrator prior to the January 31st expiration date. A penalty of 10 percent of the fee for each month or part thereof during which the fee remains unpaid, up to 100 percent, shall be added to the license fee accompanying a later renewal application. The effective date of a renewal license shall be February 1st, if the application for renewal is made prior to the current license expiration date. Renewal licenses applied for after February 1st shall be effective on the date of issuance. [Ord. 11-02 § 11, 2011.]

5.04.120 Review of renewal.

If the city has received written complaints about the licensed business, the application for renewal of the license may be reviewed under this chapter. [Ord. 11-02 § 12, 2011.]

5.04.130 Denial of renewal.

If a licensed business does not qualify for renewal under this chapter, the business license administrator shall notify the licensee in writing that renewal of the license has been denied. The notice shall state the reason for denial and inform the applicant of the provisions for appeal herein. [Ord. 11-02 § 13, 2011.]

5.04.140 Revocation of license.

If the business license administrator determines that a licensed business is violating this chapter, city ordinances, or state or federal law, the business license administrator shall notify the licensee in writing that the license is to be revoked. The notice shall be given at least 30 days before the revocation. If the violation ends within the 30 days, the business license administrator may discontinue the revocation proceedings. A notice of revocation shall state the reason for the revocation and inform the licensee of the provisions of this chapter for appeal. [Ord. 11-02 § 14, 2011.]

5.04.150 Suspension of license.

If a licensed business presents an immediate danger to persons or property, the city may suspend the license for the business at once. The suspension takes effect immediately upon notice of the suspension’s being received by the licensee, or being delivered to the licensee’s business address as stated on the licensee’s application. Such a notice shall be mailed by certified mail, return receipt requested, to the licensee and state the reason for the suspension and inform the licensee of the provisions for appeal under this chapter. The business license administrator may continue a suspension so long as the reason for the suspension exists or until a determination on appeal regarding the suspension is made under this chapter. [Ord. 11-02 § 15, 2011.]

5.04.160 Appeal.

A. An applicant whose application to the business license administrator for a license has been denied, or a licensee whose license has been denied renewal, has been suspended, or is to be revoked, may, within 30 days after the notice of denial, suspension or revocation is mailed, appeal by filing a written appeal at the office of the business license administrator.

B. The appeal shall state:

1. The name and address of the applicant;

2. The nature of the determination being appealed;

3. The reason the determination is incorrect; and

4. What the correct determination of the appeal should be.

C. An appellant who fails to file such a statement within the time permitted waives his/her objections, and the appeal shall be dismissed. If a notice of revocation is appealed, the revocation does not take effect until final determination of the appeal. The city council shall hear and determine the appeal on the basis of the written statement and such additional evidence as it considers appropriate. The appellant shall be provided at least 14 days’ written notice of a hearing on the appeal.

D. At the hearing, the appellant may present testimony and oral argument, personally or by counsel, and any additional evidence. The rules of evidence as used by courts of law do not apply, and the decision of the city council after the hearing is final. [Ord. 11-02 § 16, 2011.]

5.04.170 Posting of license.

A. Except as provided in subsection B of this section, at all times after the issuance of the license, the license shall be posted in a conspicuous place upon the business premises, available for inspection by the public and by employees and prospective employees of the business.

B. When the licensee has no office, business premises or other established place of business in the city, the license shall be in the possession of the representative of the business who is present in the city at all times during which business is being transacted by any employee or representative in the city. [Ord. 11-02 § 17, 2011.]

5.04.180 Contents of license.

Licenses shall be issued to the applicant in the name of the business to be licensed and shall designate the nature of the business, the address of the business premises, if any, and the date of issuance. [Ord. 11-02 § 18, 2011.]

5.04.190 Business fee.

A. Annually, every February 1st, a business license fee of $35.00 for the first five full-time equivalent employees (FTE) and $2.00 per each additional FTE up to a total of not more than $250.00 shall be paid by all covered businesses.

B. This fee may be modified at any time by resolution of the common council of the city of Culver.

C. Nothing in this chapter shall be construed as vesting a right in persons under a contract obligation on the part of the city for the amount or character of a business fee. Such a fee may be increased or decreased at any time by action of the city council.

D. The fee herein imposed shall not be subject to proration.

E. Local Enterprise Zone Incentive. A business which is precertified by the city as a “qualified business firm,” in accordance with the Oregon Enterprise Zone Act, shall not be required to pay these fees during the time period the business qualifies for the property tax exemption. This local enterprise zone incentive subsection shall automatically terminate on January 2, 1997, and be of no further force nor effect after that date, unless extended by action of the city of Culver or state of Oregon. [Ord. 11-02 § 19, 2011.]

5.04.200 Transfer or assignment of fee receipts.

No person shall transfer or assign a fee receipt issued under this chapter. [Ord. 11-02 § 20, 2011.]

5.04.210 Construction project license.

A. A “construction project” is any activity for which registration with the Oregon Construction Contractors Board (CCB) is required pursuant to ORS Chapter 701, for which a building permit has been issued or which is undertaken pursuant to a construction contract with the owner.

B. The prime contractor engaged in a construction project may obtain a construction project license for a project as an alternative to obtaining business licenses for each subcontractor engaged in the construction project. The construction project license is in lieu of business licenses for subcontractors only and is in addition to the business license of the prime contractor.

C. Every prime contractor obtaining a construction project license shall pay a business license fee as provided herein.

D. Application Procedure for Prime Contractors. Each prime contractor wishing to obtain a prime contractor’s license with the city on forms furnished by the city. The application shall be filed with the business license administrator and shall contain at least the following information:

1. A description of the construction project for which the construction project license is requested.

2. The name and CCB registration number of the applicant and of each subcontractor engaged in the construction project.

3. The location of the construction project.

4. The amount of license fee tendered with the application.

5. The date of the application.

6. A signed statement by the prime contractor and each subcontractor engaged in the construction project that each signatory is registered under the provisions of ORS Chapter 701, and stating that the registration is in full force and effect. For the prime contractor and each subcontractor, a copy of a current certificate of registration issued by the Oregon Construction Contractors Board.

7. Any other information the business license administrator determines necessary.

8. The signature of the prime contractor applicant.

9. Supplements to Application. The applicant may supplement the business license application from time to time by providing a supplemental application containing at least the following information:

a. A description of the construction project to which the supplemental application applies.

b. The name and CCB registration number of the applicant and of each additional subcontractor engaged in the construction project.

c. The date of the supplement application.

d. A signed statement by each additional subcontractor engaged in the construction project that such subcontractor is registered under the provisions of ORS Chapter 701, and stating that the registration is in full force and effect. For each additional subcontractor, a copy of a current certificate of registration issued by the Oregon Construction Contractors Board.

e. Any other information the business license administrator determines necessary.

f. The signature of the prime contractor applicant.

E. License Duration. New licenses shall be valid for the duration of construction project, or until the next February 1st, whichever is earlier.

F. Posting of License at All Times After the Issuance of the License. The license shall be posted in a conspicuous place upon the construction project premises available for inspection by the public. It shall be conclusively presumed that any contractor not complying with this section is operating without a business license.

G. As an alternative to obtaining a construction project license, the prime contractor and each subcontractor may obtain a separate business license as provided above. [Ord. 11-02 § 21, 2011.]

5.04.220 Penalties and enforcement.

A. A violation of this chapter shall be punishable by a fine not to exceed $1,000.

B. Every full business day during which a business activity continues to be conducted in violation of this chapter shall be considered a separate offense.

C. Offenses under this section shall be tried in the municipal court as a violation and not as a crime. As a violation there is no right to jury trial or court appointed counsel. [Ord. 11-02 § 22, 2011.]

5.04.230 Evidence of doing business.

In a prosecution for a violation of this chapter, evidence that the business made a public representation, by way of newspaper, radio, television or similar media advertisement or by signs conspicuously displayed for public view, that the business was being conducted, expressly or impliedly offering to sell goods or services in the course of the business to the public, shall constitute prima facie evidence that the business was transacting the business suggested by the public representation within the city on the date or dates during which the representations were made. [Ord. 11-02 § 23, 2011.]

5.04.240 Additional remedies.

A. In addition to the penalties provided in CMC 5.04.220, the city may sue in a court of competent jurisdiction to obtain a judgment for a tax or fee due under this chapter and enforce collection of the judgment by execution.

B. The city may seek an injunction to prohibit a person from engaging in a business without complying with this chapter.

C. Whenever a fee required by this chapter is not paid when due, the business license administrator may add as a penalty to the fee an amount equal to 10 percent of the fee for each month or part thereof during which the fee and accumulated penalty amounts remain unpaid. The total amount of penalties shall not exceed 100 percent of the original fee. [Ord. 11-02 § 24, 2011.]

5.04.250 Fee and charges classifications.

The fees and charges herein are classified as not subject to the limits of Article XI, Section 11(b) of the Oregon Constitution. [Ord. 11-02 § 26, 2011.]