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ORDINANCE NO,,?~ '7 h
AN ORDINANCE OF THE CITY OF SAN BERNARDINO IMPOSING A
TAX UPON THE USE OR CONSUMPTION OF CIGARETTES IN THE CITY OF SAN
BERNARDINO~ ESTABLISHING THE RATE OF SAID TAX AND PROVIDING FOR
THE COLLECTION AND ENFORCEMENT OF SAID TAX.
THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO DO ORDAIN AS FOLLOWS:
SECTION ONE: Title and Purposeo
(a) This Ordinance shall be known as the Cigarette
Tax Ordinance of the City of San Bernardino.
(b) It is the purpose and intent of the Mayor and
Common Council of the City of San Bernardino that there will be
a tax impos~d on the use or consumption of cigarettes in the
City of San Bernardino for the purpose of raising revenue which
will be used to defray operating expenses of the City and also
,to pay, directly or indirectly, the costs of municipal improvement 0
SECTION TWO: Except where the context otherwise requires
the definitions given in this section govern the construction of
this Ordinance:
(a) "Cigarette" means any roll for smoking, made
wholly or in part of tobacco, irrespective of size or shape and
irrespective of whether the tobacco is flavored, adulterated or
mixed with any other ingredient, where such roll has a wrapper or
cover made of paper or any other material, except where such
wrapper is wholly or in the greater part made of tobacco and such
roll weighs over three pounds per thousand.
(b) "Person" shall mean any domestic or foreign
corporation, firm, association, syndicate, joint-stock company,
partnership of any kind, joint venture, club, Massachusetts
business or common law trust, society, or individual.
(c) "City" shall mean the City of San Bernardino.
(d) "City Clerk" shall mean the City Clerk of the
City of San Bernardino.
(e) "Use or consumption" includes the exercise of any
1 right or power over cigarettes incident to the ownership thereof
2 other than the sale of the cigarettes or the keeping or retention
3 thereof for the purpose of sale.
4 (f) "Retailer" shall mean every "person" as defined
5 in Section Two Subparagraph (b) of this Ordinance who sells
6 cigarettes for any purpose other than resale. Where cigarettes
7 are offered for sale through the means of a vending machine, the
8 person holding title to the cigarettes in the machine shall be
9 deemed the retailer.
10 SECTION THREE: Tax Imposed. An excise tax is hereby
11 imposed upon the use or consumption in the City of San Bernardino
12 of cigarettes purchased from a retailer for use or consumption
13 within the City at the rate of one mill ($0.001) per cigarette.
14 SECTION FOUR: Tax Paid to Retailer. The tax constitutes
15 a debt owed by the purchaser to the City which is extinguished only
16 by payment of the tax to the City Clerk or to the retailer. When
17 a purchase from a retailer is made within the City, the tax shall
18 be paid to the retailer at the time the purchase price is paid.
19 The tax collected or required to be collected by the retailer con-
20 stitutes a debt owed by the retailer to the City. Should any re-
21 mittance of tax be made by a retailer prior to sale of cigarettes
22 to a consumer, such remittance shall be considered as an advance
23 payment to be reimbursed by adding the amount of the tax to the
24 price of the cigarettes at the time of sale to the user or
25 consumer.
26 SECTION FIVE: Retailer Remits Quarterly. Each retailer
27 selling cigarettes within the City of San Bernardino shall collect
28 the tax imposed under Section Three of this Ordinance and on or
29 before the last day of the month following the close of a calendar
30 quarter remit the total amount so collected to the City Clerk,
.31 together with a statement on a form provided by the City Clerk
32 showing the number of cigarettes sold to purchasers, the amount
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of,tax collected, and such other information as the City Clerk
shall require. The City Clerk may establish shorter reporting
periods for any retailer if he deems it necessary in order to
insure collection of the tax. Statements and payments are due
immediately upon cessation of the business of selling cigarettes
for any reason. All taxes collected by retailers pursuant to
this Ordinance shall be held in trust for the account of the
City until payment thereof is made to the City Clerk.
SECTION SIX: Registration.
(a) Within 30 days after the operative date of
this Ordinance, or within 30 days after cOllBllencing business,
Whichever is later, each retailer shall register with the City
Clerk and obtain from him a "Cigarette Tax Registration
Certificate" to be at all times posted in a conspicuous place
on the premises; provided, however, each retailer Who does not
operate from a fixed place of business shall keep the registra-
tion certificate upon his person at all times While engaging
in the business of being a retailer. No person shall engage
in the business of being a retailer without obtaining a regis-
tration certificate therefor. Said certificate shall, among
other things, state the following:
1. The name of the retailer;
2. The address of the retailer's place of business;
3. The date upon Which the certificate was issued;
4. t~is Cigarette Tax Registration Certificate signi-
fies that the person named on the face hereof has fulfilled the
requirements of Ordinance No....t {, ?~ of the City of San Bernardino
by registering with the City Clerk for the purpose of collecting
the Cigarette Tax from purchasers of cigarettes and remitting sai
tax to the City Clerk. This certificate does not authorize any
person to conduct any lawful business in an unlawful manner, nor
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1 to operate a cigarette retailing business without complying with
2 all state and local applicable laws, including but not limited
3 to those requiring a permit from any board, commission, depart-
4 ment or office of this City. This certificate does not consti-
5 tute a permit."
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5. A retailer having more than one place of business
within the City at which cigarettes are sold shall be required
to obtain a separate registration for each such place of business.
SECTION SEVEN: Penalties and Interest.
(a) Taxes collected by a retailer which are not
remitted to the City Clerk on or before the due dates fixed in
Section Five of this Ordinance, or fixed by the City Clerk as
provided herein, are delinquent.
(b) Delinquency Period. Any retailer who fails to
remit any tax imposed by this Ordinance within the time required
shall pay a penalty of ten per cent (10%) of the amount of the
tax in addition to the amount of the tax.
(c) Interest. In addition to the penalty imposed,
any retailer who fails to remit any tax imposed by this Ordinance
shall pay interest at the rate of one per cent (1%) per month
or fraction thereof on the amount of the tax, exclusive of
penalty, from the date on which the remittance first became
delinquent until paid.
(d) Every penalty imposed and such interest as
accrues under the provisions of this Section shall become a part
of the tax herein required to be remitted.
SECTION EIGHT: Additional Powers and Duties of City
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Clerk, etc.
(a) The City Clerk shall have the power and duty,
and is hereby directed to enforce each and all of the provisions
of this Ordinance.
(b) In addition to all other powers conferred upon
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1 him the City Clerk shall have the power for good cause showing to
2 extend the time for filing any required sworn statement for a
3 period not exceeding 30 days and in such case to waive any penalty
4 that would otherwise have accrued and shall have the further power
5 with the consent of the City Council to compromise any claim as
6 to the amount of license tax due.
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SECTION NINE: Failures to Collect and Report Tax; Deter-
8 mination of Tax by City Clerk. If any retailer shall fail or
9 refuse, within the time provided for in this Ordinance to make
10 any report and remittance of said tax or any portion thereof
11 required by this Ordinance, the City Clerk shall proceed to obtain
12 facts and information on which to base his estimate of the tax
13 due. As soon as the City Clerk shall procure such facts and
14 information as he is able to obtain upon which to base the assess-
15 ment of any tax imposed by this Ordinance and payable by any
16 retailer who has failed or refused to make such report and re-
17 mittance, he shall proceed to determine and assess against such
18 retailer the tax, interest, and penalties provided for in. this
19 Ordinance. In case such determination is made, the City Clerk
~ shall give a notice of the amount so assessed by serving it per-
21 sonally or by depositing it in the United States mail, postage
22 prepaid, addressed to the retailer so assessed at his last known
23 place of address. Such retailer may within ten (10) days after
24 the service or mailing of such notice make application in writing
25 to the City Clerk for a hearing on such amount assessed. If
26 application by the retailer for a hearing is not made within the
27 time prescribed, the tax, interest, and penalties, if any,
28 determined by the City Clerk shall become final and conclusive
29 and immediately due and payable. If such application,,~ made,
"'_;'f"..;
30 the City Clerk shall give not less than five (5) day.'.'\fritten
31 notice in the manner prescribed herein to the retailer to show
32 c~use at a time and place fixed in said notice why said amount
specified therein should not be fixed for such tax, interest,
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and penalties. At such hearing the retailer may appear and offer
evidence why such specified tax, interest, and penalties should
not be so fixed. After such hearing the City Clerk shall deter-
mine the proper tax to be remitted and shall thereafter give
written notice to the retailer in the manner prescribed herein
of such determination and the amount of such tax, interest, and
penalties. The amount determined to be due shall be payable
after fifteen (15) days unless an appeal is taken as provided
in Section Ten.
SECTION TEN: Any retailer aggrieved by any decision of
the City Clerk with respect to the amount of such tax, interest
and penalties, if any, may appeal to the City Council by filing
a notice of appeal with the City Clerk within fifteen (15) days
of the serving or mailing of the determination of tax due.
The City Council shall fix a time and place for hearing such
appeal and the City Clerk shall give notice in writing to such
retailer at his last known place of address. The findings of
the City Council shall be final and conclusive and shall be
served upon the appellant in the manner prescribed above in the
service of notice of hearing. Any amount found to be due shall
be immediately due and payable upon the service of notice.
SECTION ELEVEN: Records. It shall be the duty of
every retailer liable for the collection and payment to the
City of any tax imposed by this Ordinance to keep and preserve,
for a period of four years, all records as may be necessary to
determine the amount of such tax as he may have been liable
for the collection of and payment to the City, which records the
Clerk shall have the right to inspect at all reasonable times.
SECTION TWELVE: Refunds.
(a) Whenever the amount of tax, interest, or
penalty has been overpaid or paid more than once or has been
~rroneously or illegally collected or received by the City
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1 under this Ordinance, it may be refunded as provided in sub-
2 paragraph (b) of this Section provided a claim in writing there-
3 for, stating under penalty of perjury the specific ground upon
4. which the claim is founded, is filed with the City Clerk within
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5 three years of the date of payment. The claim shall be on forms
6 furnished by the City Clerk.
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(b) A retailer may claim a refund or take as credit
8 against taxes due but never remitted the amount overpaid, paid
9 more than once, or erroneously or illegally collected or received
10 when it is established in a manner prescribed by the City Clerk
11 that the amount claimed has been overpaid or paid more than once
12 or has been erroneously or illegally collected or received by
13 the City.
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(c) No refund shall be paid under the provisions
15 of this Section unless the claimant establishes by written
16 records entitlement thereto.
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SECTION THIRTEEN: Actions to Collect. Any person using
18 or consuming cigarettes within the City who has not paid the
19 tax required by the provisions of this Ordinance, and any
W retailer who has failed to collect or who has collected but not
21 remitted any llax required to be paid by the provisions of this
22 Ordinance, shall be liable to an action brought in the name
23 of the City for the recovery of such amount.
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SECTION FOURTEEN: Violationsj Misdemeanor. Any person
25 violating any provision of this Ordinance shall be guilty of a
26 misdemeanor and shall be punishable by a fine of not more than
27 Five Hundred Dollars ($500.00) or by imprisonment in the County
28 Jail for not more than six months or by both such fine and
~ imprisonment.
~ Any Retailer who fails or refuses to register as require
31 herein, or to furnish any return required to be made, or who
32 fails to furnish or refuses to furnish other data required by
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1 the City Clerk, or who renders a false or fraudulent return or
2 claim, is guilty of a misdemeanor, and is punishable as afore-
3 said. Any person required to make, render, sign, or verify and
4 report or claim who makes a false or fraudulent report or claim
5 with intent to defeat or evade the determination of any amount
6 due under this Ordinance is guilty of a misdemeanor and is
7 punishable as aforesaid.
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SECTION FIFTEEN: If any section, subsection, subdivision
9 paragraph, sentence, clause, or phrase of this ordinance or any
10 part thereof is for any reason held to be unconstitutional such
11 decision shall not affect the validity of the remaining p~tions
12 of this Ordinance or any part thereof. The City Council hereby
13 declares that it would have passed each section, subsection,
14 subdivision, paragraph, sentence, clause, or phrase thereof,
15 irrespective of the fact that anyone or more sections, sub-
16 sections, subdivisions, paragraphs, sentences, clauses, or
17 phrases be declared unconstitutional.
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SECTION SIXTEEN: This Ordinance inasmuch as it provides
for a tax levy for the usual and current expenses of the City
shall take effect immediately except the tax imposed by this
Ordinance shall become operative and imposed on Januarv 1. lq66
and shall not apply prior to said date.
I HEREBY CERTIFY that the foregoing Ordinance was duly
adopted by the Mayor and COIII1lon Council of the City of San
Beroardi,":,,_ at, .,u4..u~ d0~/A1/ ..eting thereof, heid
on theO{:'5Hday o~ L~~-j . 1965.
AYES: Councilmen: " )
/'"
/' h .<
NOES: //I;,/f')
JABSENT: /U-d~ /
i~ {7;' ~
i/. ~. 1z;71?~
() ity Cle~
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~ I
I hereby approve
day of tV/ ~f //
Approved as to form:
~!/I'~
01. tt rney
F ~ I~, '~:., D
OC1 2) 1965
Jtz".'.u "'f," )'" "r'" ~'r"'.'
,a.....,.i\c- ., ' ,."~;' . p.~ V",:.Jd ~
'j, "..~d!7~""
the foregoing Ordinance this ,;?~~/~
. 1965.
t?~ ~ /f/;/t! tJ
Mayor 0 the City 0 an ~rnardino