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ORDINANCE NO. <~7 U/
AN ORDINANCE OF 'mE CITY OF SAN BERNARDINO AMENDING
ORDINANCE NO. 2696 ENTITLED IN PART, "AN ORDINANCE. . . IMPOSING
A TAX UPON 'mE USE OR CONSUMPTION OF CIGARETTES . . . PROVIDING
FOR 'mE COLLECTION AND ENFORCEMENT OF SAID TAX"; AND IMPOSING
SAID TAX UPON THE DISTRIBUTOR.
'mE MAYOR AND C<HroN COUNCIL OF THE CITY OF SAN BERNARDINO
00 ORDAIN AS FOI.I.OWS:
SECTION ONE: The title of Ordinance No. 2696 is hereby
amended to read as follows:
"AN ORDINANCE OF THE CITY OF SAN BERNARDINO IMPOSING A
9 TAX UPON THE PRIVILEGE OF DISTRIBUTING OF CIGARETTES IN THE CITY
OF SAN BERNARDINO, ESTABLISHING THE RATE OF SAID TAX AND PROVII>-
10 ING FOR 'mE COLLECTION AND ENFORCEMENT OF SAID TAX.
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SECTION 'NO: Ordinance No. 2696 Section One Sub-section
12 (b) is hereby amended to read as follows:
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"(b) It is the purpose and intent of the Mayor and
14 Coamon Council of the City of San Bernardino that there will be
15 a tax imposed upon the privilege of distributing cigarettes in
16 the City of San Bernardino for the purpose of raising revenue
1? which will be used to defray operating expenses of the City and
18 also to pay directly or indirectly, the costs of municipal
19 improvements. "
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SECTION THREE: Ordinance No. 2696 Section Two is hereDY
amended to read as follows:
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"SECTION TWO:
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Except where the context
Definitions.
23 otherwise requires the definitions given in this section govern
24 the construction of this Ordinance:
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(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, adulterat~d 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
1 corporation, firm, association, syndicate, joint-stock company,
2 partnership of any kind, joint venture, club, Massachusetts
3 business or cOlllDlOn law trust, society, or individual.
4 (c) "City" shall mean the City of San Bernardino.
5 (d) "City Clerk" shall mean the City Clerk of the City
6 of San Bernardino.
7 (e) "Use or consumption" includes the exercise of any
8 right or power over cigarettes incident to the ownership thereof
9 other than the sale of the cigarettes or the keeping or retention
10 thereof for the purpose of sale.
11 (f) "Distribute" or "distributing" means the act, by a
12 distributor, of transporting cigarettes to which he has title,
13 or causing or allowing such cigarettes to be transported, to a
14 retail outlet in the City.
15 (g) "Distributor" shall mean every person who, having
16 title to cigarettes, transports them, or causes or allows them
17 to be transported to a retail outlet in the City.
18 (h) ''Untaxed cigarette" means any cigarette which has
19 not yet been distributed in such manner as to result in a tax
20 liability under this Ordinance.
21 (i) "Retail Outlet" means any place or premises in the
22 City (including, without limiting the generality of the fore-
23 going, every kind of store, business establishment, and club
24 in the Ci,y) where cigarettes are transferred to the possession
25 of the ultimate consumer thereof, irrespective of how such
26 transfer is consummated, whether through a natural person, by
27 means of a vending machine or other mechanical device, or
28 otherwise.
29 (j) ''Ultimate Consumer" includes any person who acquires
30 possession of cigarettes for his own use or consumption."
.31 SECTION FOUR: Ordinance No. 2696 Section Three is
32 hereby amended to read as follows:
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"SECTION THREE: Tax Imposed. An excise tax is hereby
imposed upon the privilege of distributing cigarettes to retail
outlets in the City of San Bernardino at the rate of one mill
($0.001) per cigarette. Any cigarette with respect to which a
tax has once been imposed under this Ordinance shall not be sub-
ject upon a subsequent distribution to the tax imposed by this
Ordinance. Unless the contrary is established, it shall be
presumed that all cigarettes distributed in the City are untaxed
cigarettes. It shall be unlawful knowingly, to sell, transfer,
distribute, or give away untaxed cigarettes in the City."
SECTION FIVE: Ordinance No. 2696 Section Four is
hereby amended to read as follows:
"SECTION FOUR: Registration. Within 30 days after
the operative date of this Ordinance, within 30 days after
comnencing businesf, or within 30 days after a change in owner-
ship of a business registered under this Ordinance, whichever
is later, each distributor of cigarettes shall register with
the City Clerk on a form provided by the City Clerk.
SECTION SIX: Ordinance No. 2e~ Section Five is hereby
amended to read as follows:
"SECTION FIVE: Records and Statements Required. Every
distributor shall keep a complete and accurate record of all
cigarettes distributed by him in the City. Such records shall,
with respect to each separate distribution, include a written
statement containing the name and address of the retail outlet
to which distribution is made, the name of the persons who own
or operate such retail outlet and to whom title or possession of
the distributed cigarettes is transferred, the date of delivery,
the quantity of cigarettes, the sales price, the amount of tax
imposed under this Ordinance, and such other information as the
City Clerk may reasonably require. All statements and records
"required by this section shall be in a form satisfactory to the
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City Clerk. They shall be preserved for a period of three years
and shall be offered for inspection at any time upon oral or
written demand by the City Clerk or his authorized agent. The
City Clerk is hereby authorized and directed to offset and
deduct from the total amount of tax monies which may become
owing and payable by a distributor to the City under the pro~
visions of this Ordinance for any calendar month from and after
January I, 1966, an amount of money equal to two percent (2%) of
such total amount of tax monies owing and payable by such distri-
bution to the City for such month, if such distributor has com-
plied with, and done all things required of him by the provisions
of this section to the satisfaction of the City Clerk. Such off-
set and deduction shall be deemed reimbursement to the distributor
for costs and expenses incurred by him in complying with and
doing all things required of him by this section."
SECTION SEVEN: Ordinance No. 2696 Section Six is hereby
amended to red .8 follows:
"SECTIOK SIX: Reporting and Remitting. The tax imposed
under this Ordinance shall be due and payable monthly on or be-
fore the last day of the calendar month following the calendar
month in which the distribution of cigarettes occurs.
Each distributor shall make a return to the City Clerk
on forms provided by said City Clerk, of the total number of
cigarettes distributed to retail outlets in the City by the
distributor during each calendar month and the amount of tax
due thereon. Each such return shall be filed with the City Clerk
on or before the last day of the calendar month following the clos
of the calendar month for which the return is made.
At the time the return is filed, the full amount of the
tax imposed by this Ordinance shall be remitted to the City Clerk.
The City Clerk may establish a shorter reporting period for any
distributor if he deems it necessary in order to insure collection
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1 of the tax. Returns and payments are due :l.tmnediately upon
2 cessation of business for any reason. All returns and payments
3 submitted by each distributor shall be treated as confidential
4 by the City Clerk and shall not be released by him except by
5 order of a court of competent jurisdiction or to an official
6 or agent of the United States. the State of California. the County
7 of San Bernardino, or the City of San Bernardino. for official
8 use only."
9 SECTION EIGHT: Ordinance No. 2696 Section Seven is
hereby amended to read as follows:
"SECTION SEVEN: Penalties and Interest.
(a) Original Delinquency Period. Any distributor who
fails to remit any tax imposed by this Ordinance within the time
required shall pay a penalty of ten percent (10'7.) of the amount
of the tax in addition to the amount of the tax.
(b) Continued Delinquency. Any distributor who fails
to remit any delinquent remittance within one month following the
date on which the remittance first became delinquent shall pay a
second delinquency penalty of ten percent (10'7.) of the amount of
the tax in addition to the amount of the tax and the ten percent
(10%) penalty first imposed.
(c) Fraud. If the City Clerk determines that the non-
payment of any remittance due under this Ordinance is due to
fraud. a payment of twenty-five percent (25'7.) of the amount of
the tax shall be added thereto in addition to the penalties stated
in subparagraphs (a) and (l;)'9f this section.
(d) Interest. In addition to the penalties imposed
any distributor who fails to remit any tax imposed by this
Ordinance shall pay interest at the rate of one percent (1'7.) per
month or fraction thereof on the amount of the tax, exclusive of
penalties, from the date on which the remittance first became
delinquent until paid.
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(e) Penalties Merged With Tax. Every penalty imposed
2 and such interest as accrues under the provisions of this section
3 shall become a part of the tax herein required to be paid.
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(f) Penalties During Pendency of Hearing or Appeal.
5 No penalty provided under the terms of this Ordinance shall be
6 imposed during the pendency of any hearing which is provided for
7 in Section Nine of this Ordinance nor during the pendency of any
8 appeal to the City Council which is provided for in Section Ten
9 of this Ordinance."
SECTION NINE: Ordinance No. 2696 Section Eight is
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11 hereby repealed.
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13 amended to read as follows:
SECTION TEN: Ordinance No. 2696, Section Nine is hereby
"SECTION NINE: Failures to Collect and Report Tax;
15 Determination of Tax by City Clerk. If any distributor shall
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fail or refuse, within the time provided for in this Ordinance,
to make any report and remittance of said tax or any portion
thereof required by this Ordinance, the City Clerk shall proceed
to obtain facts and information on which to base his estimate
of the tax due. As soon as the City Clerk shall procure such
facts and information as he is able to obtain upon which to base
the assessment of any tax imposed by this Ordinance and payable
by any distributor who has failed or refused to make such report
and remittance, he shall proceed to determine and assess against
such distributor the tax, i~.!!rest, and penalties provided for
by this Ordinance. In cas~- ~ determination is made, the City
Clerk shall give a notice of the amount so assessed by serving
it personally or by depositing it in the United States mail,
postage prepaid. addressed to the distributor so assessed at
his last known place of address. Such distributor may within
ten (10) days after the service or mailing of such notice make
-application in writing to the City Clerk for a hearing on such
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amount assessed. If application by the distributor for a hearing
is not made within the time prescribed, the tax, interest, and
penalties, if any, determined by the City Clerk shall become
final and conclusive and ilEediate1y due and payable. If such
application is made, the City Clerk shall give not less than five
(5) days written notice iIi the manner prescribed herein to the
distributor to show cause at a time and place fixed in said
notice why said amount specified therein should not be fixed
for such tax, interest, and penalties. At such hearing, the
distributor may appear and offer evidence why such specified
tax, interest, and penalties should not be so fixed. After such
hearing the City Clerk shall determine the proper tax to be
remitted and shall thereafter give written notice to the distri-
butor 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. II
SECTION ELEVEN: Ordinance No. 2696 Section Ten is
hereby amended to read as follows:
"SECTION TEN: Appeal. Any distributor aggrieved by
any decision of the City Clerk with respect to the amount of
such tax, interest arid 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 hear-
ing such appeal and the City Clerk shall give notice in writing
to such distributor 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 iDnediatia1y due and payable upon the service of such
notice."
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SECTION 'l'WELVE: Ordinance No. 2696 Section Eleven is
hereby repealed.
SECTION THIRTEEN: Ordinance No. 2696 Section Twelve is
hereby amended to read as follows:
"SECTION 'l'WELVE: Refunds .
(a) . Whenever the amount of tax, interest, or penalty
has been overpaid or paid more than once or has been erroneously
or illegally collected or received by the City under this
Ordinance, it may be refunded as provided in sub-paragraph (b)
of this Section provided a claim in writing therefor, stating
under penalty of perjury the specific ground upon which the
claim is founded, is filed with the City Clerk within three
years of the date of payment. The claim shall be on forms fur-
nished by the City Clerk.
(b) A distributor may claim a refund or take as credit
against taxes due but never remitted the amount overpaid, paid
more than once, or erroneously or illegally collected or received
when it is established in a manner prescribed by the City Clerk
that the amount claimed has been overpaid or paid more than
once or has been erroneously or illegally collected or received
by the City.
(c) No refund shall be paid under the provisions of
this Section unless the claimant establishes by written records
entitlement thereto."
SECTION FOUIlTEEN: Ordinance No. 2696 Section Thirteen
is hereby amended to read as follows:
"SECTION THIRTEEN: Actions to Collect. Any person
owing taxes under the provisions of this Ordinance and any
distributor who has failed to remit any tax required to be paid
by the provisions of this Ordinance shall be liable to an action
brought in the name of the City for the recovery of such aaount."
SECTION FIFTEEN: Ordinance No. 2696 Section Fourteen
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1 is hereby amended to read as follows:
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.'SECTION FOURTEEN: Violations; Misdemeanor. Any person
3 violating any provision of this Ordinance shall be guilty of a
4 misdemeanor and shall be punishable by a fine of not more than
5 Five Hundred Dollars ($500.00) or by imprisolllDent in the County
6 Jail for not more than six months or by both such fine and
7 1.prisonment.
8 Any distributor who fails or refuses to register as
9 required herein, or to furnish any return required to be made,
10 or who fails to furnish or refuses to furnish other data required
11 by the City Clerk, or who renders a false or fraudulent return
12 or claim, is guilty of a misdemeanor, and is punishable as
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aforesaid. Any person required to make, render, sign, or verify
and report or claim who makes a false or fraudulent report or
claim with intent to defeat or evade the determination of any
amount due under this Ordinance is guilty of a misdemeanor and
is punishable as aforesaid.
I HEREBY CERTIFY that the foregoing Ordinance was duly
adopted by the Mayor and Coamon Council of the City of San
Bernardino at ~-?//7't~aA/"~ A7.//Mmeeting thereof,
held on the x-d y of ~AA/'d,~k/ . 1965, by the
following vote, to wit:
AYES: .Councilmen:~~&> -hj'41A/-;
~~~.
NOES: / ABSENT:~/~~~Lu
k/! /' ~
if J' bit). ~
I hereby approve the foregoing Ordinance this ~day
.
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Approved as to form:
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F
f..",ED
.00'
NOV 12 1965
JACK T. FBLiltl, y~ Clerk
(~:II{,1.~:...DEPUlV
(/
. 1965.
no