Chapter 5.04
GENERAL PROVISIONS
Sections
5.04.010 Engaging in business – Definition.
5.04.020 License or license registration required – Transfer prohibited.
5.04.030 Licenses – Fees – Appeal.
5.04.035 Inspection as condition of license issuance or renewal – Time limits for compliance.
5.04.040 Issuance – Late penalty.
5.04.060 License or license registration revocation – Appeal.
5.04.065 License or license registration revocation – Moral nuisance – Appeal.
5.04.090 Reasons for enactment of chapter.
5.04.010 Engaging in business – Definition.
(1) The term “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.
(2) 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 minimis 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 subsection (1) of this section. 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.
(3) 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:
(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, 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 and 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.
(4) 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 with 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 directors 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.
(5) 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 (4) of this section.
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 contact or subsequent contacts. [Ord. 1706 § 1, 2018.]
5.04.015 Rental of residential real property.
Repealed by Ord. 1351. [Ord. 881 § 2, 1991: Ord. 859 § 3, 1990.]
5.04.020 License or license registration required – Transfer prohibited.
(1) It is unlawful for a person to engage in business within the City without first having secured a license to do so, or continue to engage in business after such license or license registration is revoked. Each business location shall be deemed a separate business.
(2) 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 shall submit a business license registration to the Finance Director or the Finance Director’s designee at no cost in lieu of obtaining a business license under this chapter. An approved business license registration submitted under this subsection shall fulfill the requirement to secure a business license set forth in subsection (1) of this section. The dollar threshold in this subsection does not apply to regulatory license requirements or activities that require a specialized permit.
(3) A license issued under this chapter is valid only for operation of the specific business for which application is made and is not transferable to any other person.
(4) Each day that a person engages in business without a valid business license or license registration constitutes a separate offense and may be punished as such; except a person that assumes operation of a business that has a current valid license is allowed 30 days to make application for a business license in the name of the new operator, but only if there is no change in the nature or type of business conducted, location, or use of the business premises and there are no existing violations of federal, state, or local law. [Ord. 1736 § 1, 2020; Ord. 1706 § 2, 2018: Ord. 1354 § 2, 2004: Ord. 993 § 6, 1992: Ord. 863 § 1, 1990: Ord. 460 § 1(A), 1979: Ord. 39 § 2, 1960.]
5.04.030 Licenses – Fees – Appeal.
(1) Applications for licenses or license registrations shall be made to the Finance Director or the Finance Director’s designee on such forms as he or she may direct. All home occupations shall be licensed as a business. All applications for business licenses shall be accompanied by a license fee set by resolution of the City Council. No fee shall be required for business license registrations. The Finance Director shall present all applications for licenses or license registrations to the City Manager for investigation. No license or license registration shall be granted to any person, firm, or corporation whom the City Manager finds:
(a) Will be engaging in a business which violates any federal or state law or City ordinance;
(b) Has had a similar license revoked or has operated without any required license(s) in any jurisdiction within a one-year period prior to the date of making application for a license under this chapter; or
(c) Is using or occupying the real property of the business in violation of the provisions of Title 14 DMMC or all amendments thereto or in violation of City provisions regarding nuisances.
(2) Any appeal from a denial of issuance of such license or license registration shall be taken to the hearing examiner within 10 days of such denial in accordance with the provisions of the hearing examiner code. [Ord. 1736 § 2, 2020; Ord. 1706 § 3, 2018: Ord. 1354 § 3, 2004: Ord. 770 § 35, 1988: Ord. 678 § 1, 1986; Ord. 556 § 1, 1983; Ord. 460 § 1(B), 1979: Ord. 454 § 1(A), 1979: Ord. 39 § 3, 1960.]
5.04.035 Inspection as condition of license issuance or renewal – Time limits for compliance.
(1) A person, firm or corporation applying for or renewing any license under this Title shall allow physical inspections by the City’s Building Official and Fire Marshal, or their respective designee(s) (including re-inspections, as needed), of the premises, objects, equipment, vehicles, instruments, or devices on, in, or with which business is proposed to be conducted by the applicant to determine whether the business complies with City codes, including without limitation Title 14 DMMC, the Uniform Building Code, Uniform Plumbing Code, Uniform Mechanical Code, and American National Standards Specifications for Making Buildings and Facilities Accessible to and Usable by the Physically Handicapped.
(2) Applicants shall be responsible for scheduling any inspection authorized by this section in a timely manner.
(3) In the event the Building Official or Fire Marshal discovers a violation of City code(s) during an inspection conducted as part of a business license application process (including applications for business license renewals), the Building Official shall issue a written notice of violation generally describing the violation and corrective action required to bring the applicant’s premises or other equipment into compliance with applicable City codes or regulations.
(4) The Building Official shall allow applicants found to be in violation of City codes, through an inspection conducted under authority of this chapter, a grace period of no more than 21 days in which to bring the business, premises, or equipment into compliance. No grace period shall be allowed where the Building Official determines that any dangerous circumstance or violation of a particular code provision poses an imminent risk of harm or damage to persons or property.
(a) For applicants seeking a new business license, failure to correct a violation within the time period provided by the Building Official will be cause for the City Clerk to reject an application and require that a new application be made, accompanied by an additional fee of 100 percent of the fee payable upon an original application filed for any license required under this Title. No license for a new business will be issued until appropriate corrective action is taken to the satisfaction of the Building Official.
(b) For applicants seeking to renew an existing business license, failure to correct a violation within the time period provided by the Building Official shall constitute a violation of this chapter in addition to or as an alternative to any other applicable violation of this code and shall expose the applicant to any and all civil and/or criminal penalties provided in this Title, code, or other law.
(5) A determination by the Building Official of compliance with City codes for purposes of issuing or renewing a business license under this Title shall in no way be construed as permission or acquiescence in a prohibited activity or other violation of law that occurs or is discovered following an inspection after issuance of any license.
(6) The provisions of this section shall not apply to businesses who do not maintain a place of business within the City of Des Moines. [Ord. 1706 § 4, 2018: Ord. 1354 § 4, 2004: Ord. 1227 § 1, 1999.]
5.04.040 Issuance – Late penalty.
A license or license registration issued under this chapter is granted for the calendar year of issuance, and shall be renewed on or before the last day of January of the year following its date of issuance. Failure to pay the license fee when due and payable shall result in a penalty set by resolution of the City Council. All other applications for renewals are accompanied by the same fee set by resolution of the City Council. [Ord. 1736 § 3, 2020; Ord. 1354 § 5, 2004: Ord. 1086 § 1, 1994: Ord. 39 § 4, 1960.]
5.04.050 Exemptions.
Except as hereinafter provided, the provisions of this title shall not apply to any activities carried on by:
(1) The United States or any instrumentality thereof, and by the state or any municipal subdivision thereof;
(2) Nonprofit or charitable organizations established under the laws of the state or any other state or territory of the United States, except that any business activities by such entities which are subject to federal, state, or local taxation, other than bazaar or rummage sales conducted under the provisions of RCW 82.04.365, shall conform to the provisions of this title;
(3) Any nonprofit organization in respect to the operation of “sheltered workshops” as such terms are defined in RCW 82.04.385;
(4) Clubs organized and operated exclusively for pleasure, recreation, or other nonprofit purposes, no part of the earnings of which inures to the benefit of any private member or shareholder, except that any business activities by such entities which are subject to federal, state, or local taxation, other than bazaar or rummage sales conducted under the provisions of RCW 82.04.365, shall conform to the provisions of this title;
(5) Casual or isolated sales made by a person who is not engaged in the business of making sales of the type of property involved. [Ord. 877 § 1, 1990: Ord. 39 § 5, 1960.]
5.04.060 License or license registration revocation – Appeal.
The city manager may at any time revoke any license or license registration issued under the authority of this chapter upon final conviction in a court of competent jurisdiction of any owner, shareholder, partner, manager, employee, servant, or agent of the business of a single instance of a violation of federal or state law or city ordinance, which violation occurs upon the premises or arises out of the business for which the license or license registration has been issued. Lack of knowledge or encouragement of the illegal act by the licensee shall be immaterial to the determination of revocation. Any appeal from revocation of such a license or license registration shall be filed with the hearing examiner within 10 days of such revocation in accordance with the provisions of the hearing examiner code. [Ord. 1354 § 6, 2004: Ord. 770 § 36, 1988: Ord. 460 § 1(C), 1979: Ord. 39 § 6, 1960.]
5.04.065 License or license registration revocation – Moral nuisance – Appeal.
The city manager may at any time revoke any license or license registration issued under the authority of this chapter upon a finding that the licensed premises is a place in or upon which acts of lewdness or acts of prostitution are conducted, permitted, carried on, continued, or exist. Lack of knowledge or lack of encouragement of such acts of lewdness or prostitution by the licensee shall be immaterial to the determination of revocation and shall not be a defense. The licensee is strictly liable for all such acts committed on the licensed premises; provided, however, that prior to revocation of the business license or license registration the city manager shall comply with the warning and probation procedures contained in this section. Upon presentation to the city manager of adequate evidence to support a finding of probable cause that an act of lewdness or prostitution has occurred on the licensed premises, the city manager shall notify the licensee in writing of these findings. The notice shall specify the particular act of lewdness or prostitution and warn the licensee that the business license or license registration is in a probationary status for a period of one year and any further acts of lewdness or prostitution occurring on the licensed premises shall result in revocation of the business license. Upon a finding of probable cause to believe that an additional act of lewdness or prostitution has occurred on the licensed premises within the probationary period the business license shall be revoked. The licensee shall be entitled to appeal such revocation to the hearing examiner in accordance with the provisions of the hearing examiner code, provided a written appeal is filed with the city clerk within 10 days following revocation of the business license or license registration. [Ord. 1354 § 7, 2004: Ord. 824 § 1, 1989.]
5.04.070 Renewal – Appeal.
Applications for renewal of a business license or license registration shall be automatically granted unless the applicant is notified by the city manager in writing prior to renewal that the application shall not be granted because of noncompliance with DMMC 5.04.030 or 5.04.060, or because the use or occupancy of the real estate of the business is in violation of the provisions of DMMC Titles 14 and 18 and all amendments thereto, or in violation of the city provisions regarding nuisances. Any appeal from a denial of renewal of such a license or license registration shall be taken to the hearing examiner within 10 days of such denial in accordance with the provisions of the hearing examiner code. [Ord. 1354 § 8, 2004: Ord. 770 § 37, 1988: Ord. 460 § 1(D), 1979: Ord. 39 § 7, 1960.]
5.04.080 Posting license.
(1) Any license issued under this Title shall be posted in a conspicuous place within the establishment.
(2) The provisions of this section shall not apply to businesses who do not maintain a place of business within the City of Des Moines. [Ord. 1706 § 5, 2018: Ord. 1354 § 9, 2004: Ord. 39 § 8, 1960.]
5.04.090 Reasons for enactment of chapter.
This chapter is enacted for the purpose of regulating and controlling businesses. [Ord. 460 § 1(F), 1979: Ord. 39 § 10, 1960.]
5.04.100 Violation – Penalty.
(1) Civil Infraction. Except as otherwise provided in this title, no person shall violate or fail to comply with this title. A violation of or failure to comply with this section is a class 1 civil infraction.
(2) Criminal Penalty. Except as otherwise provided in this title, in addition to or as an alternative to any other penalty provided in this title or by law, a person convicted of a violation of this title is guilty of a gross misdemeanor.
(3) Separate Offense. Each day upon which a violation of this title occurs constitutes a separate offense. [Ord. 1227 § 2, 1999: Ord. 1009 § 33, 1993: Ord. 610 § 9, 1984: Ord. 460 § 1(E), 1979: Ord. 39 § 9, 1960.]